Citation Nr: 1521204 Decision Date: 05/18/15 Archive Date: 05/26/15 DOCKET NO. 05-38 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for right shoulder disability, and if so, entitlement to service connection for right shoulder disability. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), and if so, entitlement to service connection for a psychiatric disorder other than PTSD. 3. Entitlement to service connection for PTSD. 4. Entitlement to service connection for seizures. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from January 12, 1976, to January 27, 1976. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a June 1980 rating decision, the RO denied service connection for right shoulder disability and chronic neuropsychiatric disability. In a March 2005 rating decision, the RO denied service connection for right shoulder disability, PTSD, and seizures. In a February 2008 decision, the Board denied service connection for service connection for right shoulder disability, PTSD, and seizures. In a November 2011 decision, the Board noted that records that were lost when the Board considered the case in February 2008 were later found and associated with the claims file. The Board vacated the February 2008 decision. Based on the history of the Veteran's claims, the Board recharacterized the issues on appeal as requests to reopen previously denied claims for service connection for right shoulder disability and a psychiatric disorder other than PTSD, and claims for service connection for PTSD and seizures. The Board then remanded those issues to the RO for additional action and reconsideration. The Board is satisfied that there has been substantial compliance with the directives in the November 2011 remand. The Board will proceed with review of the issues that are otherwise ready for review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran did not file a notice of disagreement with a June 1980 rating decision denying service connection for right shoulder disability. No new and material evidence was received within a year after that rating decision. 2. Evidence regarding service connection for right shoulder disability received since the June 1980 rating decision is redundant of evidence of record in June 1980. 3. The Veteran did not file a notice of disagreement with a June 1980 rating decision denying service connection for a nervous condition. No new and material evidence was received within a year after that rating decision. 4. Evidence regarding service connection for a nervous condition received since the June 1980 rating decision does not relate to the existence of nervous disorder symptoms during service or to any other unestablished fact necessary to substantiate the claim. 5. The Veteran does not have a diagnosis of PTSD related to an in-service stressor. 6. No head injury or seizure was reported, observed, or treated during the Veteran's service. 7. Any current seizures did not become manifest during the Veteran's service. CONCLUSIONS OF LAW 1. The June 1980 rating decision denying service connection for right shoulder disability and a nervous condition is a final decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 2. Evidence received since the June 1980 rating decision is not new and material to a claim for service connection for right shoulder disability; the June 1980 rating decision is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014); 38 C.F.R. § 3.156. 3. The June 1980 rating decision denying service connection for a nervous condition is a final decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. 4. Evidence received since the June 1980 rating decision is not new and material to a claim for service connection for a psychiatric disorder other than PTSD; the June 1980 claim is not reopened. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156. 5. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2014). Seizures were not incurred or aggravated in service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). VA provided the Veteran notice in letters issued in April 2004, October 2004, March 2006, May 2006, November 2011, and November 2012. In those letters, VA advised the Veteran what information was needed to substantiate claims for service connection. The letters also informed the Veteran how VA assigns disability ratings and effective dates. In the November 2011 Board remand, the Board instructed the RO to provide the Veteran notice including explanation of what constitutes new and material evidence to reopen his claims for service connection for a right shoulder disability and a psychiatric disability. The Board also instructed the RO to readjudicate the Veteran's claims. Later in November 2011, the VA Appeals Management Center sent the Veteran a letter that included explanation of what constitutes new and material evidence to reopen previously denied service connection claims. In a July 2014 supplemental statement of the case, the RO readjudicated the claims. The Board is satisfied that there has been substantial compliance with the directives in the November 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claims file contains service medical records, post-service medical records, and statements from the Veteran and his father. He has not had a VA medical examination that addressed his claim for service connection for PTSD or seizures. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not suggest a current diagnosis of PTSD that is related to an in-service stressor, and while the Veteran currently reports seizures, there is no indication of a head injury in service or that a seizure disability is related to a claimed head injury in service. The Board finds that there is no evidence supporting links between service and any current seizures that meets even the low threshold for providing a medical examination or obtaining a medical opinion. Therefore, VA does not have a duty to provide an examination or obtain an opinion regarding the claim for service connection for PTSD and seizures. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Right Shoulder Disability At the time of his entrance into service, the Veteran reported a history of right shoulder surgery. He essentially contends that right shoulder disability was aggravated during service. In April 1980, the Veteran submitted a claim for service connection for shoulder disability, described as permanent shoulder separation. In a June 1980 rating decision, the RO denied service connection for recurrent dislocation of the right shoulder. The RO found that a right shoulder injury before service was not aggravated in service. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C.A. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C.A. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c). During the year following the June 1980 rating decision, the Veteran did not file an NOD with that decision. That decision became final. No evidence that was new and material to the right shoulder disability claim was received within the appeal period. No additional service department records were received after that rating decision. In January 2004, the Veteran requested to reopen a claim for service connection for right shoulder disability. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The only final disallowance on any basis of the Veteran's claim for service connection for right shoulder disability is the June 1980 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, supra, at 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. A preexisting injury or disease will be considered to have been aggravated in service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2014). The evidence that was of record in June 1980 included the Veteran's claim and his service medical records. In his claim, he indicated that he incurred permanent shoulder separation on January 16, 1976. His service medical records include a December 1975 medical history, in which he reported having had surgery in November 1974 to address shoulder separation. On a December 1975 examination for entrance into service, in the area for scars, the examiner noted a history of right shoulder operations, and noted that this was not considered disqualifying. For the condition of the upper extremities and other musculoskeletal areas, the examiner checked the spaces for normal. On January 20, 1976, the Veteran sought treatment for a sore, painful right shoulder. He reported that he underwent surgery on that shoulder in November 1975, due to a car accident. He was referred for an orthopedic consultation. In the orthopedic consultation, the physician noted a history of operations for right shoulder dislocation in November 1974 and November 1975. The physician observed that the Veteran had pain with abduction and external rotation of the right shoulder. The physician found that the pain was due to recurrent dislocation of the shoulder. The physician recommended separation from service. A January 20, 1976, profile indicated that the Veteran was not medically qualified for induction and retention, due to a painful right shoulder, secondary to recurrent dislocations. The evidence that has been added since the June 1980 rating decision includes later medical records, statements from the Veteran, and a statement from the Veteran's father. Medical records added to the file include records of treatment at state correctional facilities from 1991 forward. Those records reflect that the Veteran had a right shoulder problem. In statements submitted after 1980, the Veteran reported that he reinjured his right shoulder in basic training. In January 2011, the Veteran's father wrote that the Veteran enlisted in the Army in late December 1975. He stated that when the Veteran was separated from service in late January 1976, his right arm was in a sling. He indicated that the Veteran continued to have right shoulder instability and had additional surgery to address recurrent separation of the shoulder. That evidence did not indicate that the right shoulder increased in disability during service. The evidence that was of record in June 1980 reflected that the Veteran had a history of right shoulder dislocation before entering service, and that during service he continued to have right shoulder symptoms due to recurrent dislocation. The evidence added to the record after June 1980 includes more recent evidence that preservice right shoulder problems recurred during and after service. The additional evidence that preservice right shoulder disability was recurrently symptomatic during and after service did not indicate that the right shoulder increased in disability during service. As such, the new evidence is redundant of evidence of record in June 1980, and is not material to the claim. As evidence that is both new and material has not been received, the Board denies reopening of the previously denied claim for service connection for right shoulder disability. Psychiatric Disorder Other Than PTSD The Veteran contends that he has a psychiatric disorder that began during service or developed as a result of events during service. He submitted in April 1980 a claim for service connection for a nervous condition. In a June 1980 rating decision, the RO denied service connection for a nervous condition. The RO found that a chronic nervous condition was not shown by the evidence of record. During the year following the June 1980 rating decision, the Veteran did not file an NOD with that decision. That decision became final. No evidence that was new and material to the nervous disorder claim was received within the appeal period. No additional service department records were received after that rating decision. In January 2004, the Veteran submitted a request to reopen a claim for service connection for acquired psychiatric disability. In order to reopen the previous finally disallowed claim, new and material evidence must be received. 38 U.S.C.A. §§ 5108, 7104(b). The evidence that was of record in June 1980 included treatment records from service and the years immediately following service. The service medical records do not reflect any mental disorder complaints or findings. In a VA treatment in April 1980, several years after service, the Veteran reported weight loss, difficulty sleeping, and tremors. He stated that he had lost his job because of those problems. A clinician provided a diagnosis of anxiety, and admitted him to outpatient treatment at a day hospital. The evidence added to the record after June 1980 included statements from the Veteran and his father. In statements submitted in January 2004 and later, the Veteran reported that during basic training he fell and sustained head injury. He asserted that symptoms of psychiatric disorder developed after that fall and head injury, and that he had VA mental health treatment not long after separation from service. In a January 2011 statement, the Veteran's father recalled that, when the Veteran returned home from service in 1976, his head was bandaged. His father stated that the Veteran subsequently complained of nightmares, depression, and headaches, which he believed was related to the fall and head injury. The RO denied service connection for a nervous condition in June 1980, finding that the Veteran did not have a chronic nervous condition during service. The evidence added since June 1980 does not contain any assertion that the Veteran had any symptoms of psychological disorder during service. The new evidence, then, does not relate to any unestablished fact necessary to substantiate the claim. As such, the new evidence is not material to the claim. In the absence of evidence that is both new and material, the Board denies reopening of the previously denied claim for service connection for a psychiatric disorder other than PTSD. PTSD For similar reasons, the Board finds that the evidence does not show a current diagnosis of PTSD that is related to any in-service stressor. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) . The PTSD diagnosis must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. §§ 3.304(f) , 4.125(a). Here, the Veteran alleges PTSD secondary to a head injury during his two-week period of active duty military service. The Veteran's service treatment records do not show any treatment for a head injury and the Board finds that the weight of the evidence is against a finding that a head injury occurred. Moreover, there is no evidence showing a diagnosis of PTSD related to the Veteran's military service. As such, there is no doubt to be resolved and the claim must be denied. Seizures The Veteran reports that during service he fell and sustained a head injury. He contends that he has seizures that are attributable to that head injury. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The Veteran's service medical records do not reflect any report of head injury or seizure. The claims file contains records of post-service medical treatment of the Veteran. Those records include a medical history completed in September 1991 at a non-VA facility. At that time, the Veteran reported that in 1968 he sustained a head injury and was hospitalized. Non-VA records from 1991 through 2003 are silent for reports or findings of seizures. In VA treatment in January 2004, the Veteran reported for many years he had experienced petit mal seizures. He stated that he had been out of medications since November 2003, and was having about two seizures per week. The treating clinician prescribed the anti-seizure medication Tegretol. In a January 2011 statement, the Veteran's father reported that the Veteran was on seizure medication around the time he turned eighteen years old (April 1976). The claims file does not contain any records of treatment of the Veteran with seizure medication around that time. In 2004 the Veteran reported a many year history of seizures, and a VA clinician refilled a medication for seizures. That treatment record helps to indicate that the Veteran currently has seizures. There is no medical evidence that the Veteran had any seizure during service. He is competent to recall that during service he fell and sustained head injury. But the elapse of many years between his service and his earliest report of that injury, and the lack of notation of any such injury in the service medical records, combine to undermine the credibility of the recent recollections. Most importantly, no clinician has supported a connection between current seizures and any injury in service. Therefore, the preponderance of the evidence is against service connection for seizures. ORDER Reopening of a claim for service connection for right shoulder disability is denied. Reopening of a claim for service connection for a psychiatric disorder other than PTSD is denied. Entitlement to service connection for PTSD is denied. Entitlement to service connection for seizures is denied. ______________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs