Citation Nr: 1803348 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-44 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a left ankle disability. 2. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for depression. 3. Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Puerto Rico. The December 2013 rating decision reopened the Veteran's prior claim of service connection for a left ankle disability and denied service connection, denied reopening of the Veteran's prior claim of service connection for depression, and denied entitlement to service connection for the Veteran's low back disability. The Veteran filed a notice of disagreement (NOD) for the rating decision in March 2014. A statement of the case (SOC) was issued in November 2014, and the Veteran perfected his appeal in December 2014. The Veteran submitted a request for a local hearing with a San Juan Regional Office Decision Review Officer in December 2014. The Veteran's VA Form 9 specifically indicated that the Veteran did not want a Board hearing. In July 2016, the Veteran submitted a statement agreeing to change the request from formal to informal and requested the case be transferred to Washington. As such, the Board finds the Veteran's request for a local hearing withdrawn. The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, one issue in this case is whether new and material evidence has been received to reopen the claims of service connection for a left ankle disability and depression. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A July 2005 rating decision denied the Veteran's claims of entitlement to service connection for a left ankle disability and depression; the Veteran was notified of this decision and did not file a notice of disagreement. 2. Additional evidence received since the July 2005 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for a left ankle disability or depression. 3. The Veteran's low back disability did not manifest during service or within one year of separation from service, was not related to his service, and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The July 2005 decision denying entitlement to service connection for a left ankle disability and depression is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302, 20.11032 (2017). 2. New and material evidence has not been received since the July 2005 rating decision, and the claim of service connection for a left ankle disability is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has not been received since the July 2005 rating decision, and the claim of service connection for depression is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 CFR §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims to Reopen A July 2005 rating decision denied the Veteran's claims of entitlement to service connection for a left ankle disability and depression; the Veteran was notified of this decision and did not file a notice of disagreement. Therefore, the July 2005 rating decision is final. Generally, a claim that has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Left Ankle Disability The July 2005 rating decision denied entitlement to service connection for a left ankle disability as the evidence did not demonstrate a current left ankle disability. The rating decision acknowledged that in December 1961, during active service, the Veteran received treatment for left ankle trauma. However, the RO found no permanent residuals or disability subject to service connection was shown by the medical records following service. The evidence before the VA at the time of the July 2005 decision consisted of the Veteran's service treatment records; VA medical records dated 2004 to 2005; and the Veteran's lay assertions. The Veteran filed a request to reopen his claim for entitlement to service connection for a left ankle disability in December 2012. The evidence associated with claims file relating to the left ankle disability following the July 2005 rating decision includes a June 2013 VA examination; VA medical records dated 2012 to 2013; and the Veteran's lay assertions. The evidence associated with the claims file since the July 2005 rating decision does not relate to or raise a reasonable probability of establishing a current left ankle disability. The June 2013 VA examination identified a December 1961 diagnosis of left ankle contusion and abscess, healed with no sequela. In December 2013, a VA examination clarification was issued. This clarification indicated that there is no current left ankle diagnosis. The rationale stated that the December 1961 contusion and abscess had headed with no sequale, the examiner noted no complications, and the physical examination did not reveal abnormalities. As such, the examination, taken with the subsequent clarification, does not raise a reasonable probability of establishing a current left ankle disability. The new VA medical records show that the Veteran complained of left ankle pain in September 2012 and May 2013. However, the medical records do not contain a diagnosis of any left ankle disability. Although the Veteran is competent to report pain in the left ankle, pain itself does not equate to an underlying disease or residuals of an injury. As such, the new VA medical records submitted do not raise a reasonable probability of establishing a current left ankle disability. Other than reiterating his previous assertions, the Veteran has not offered any additional evidence that establishes a current left ankle disability. The Veteran submitted new statement in April 2013 detailing his December 1961 in-service injury to his left ankle. However, the existence of the in-service injury was established in the July 2005 rating decision, and as such this evidence does not relate to an unestablished fact necessary to substantiate the claim. After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim of entitlement for service connection for a left ankle disability has not been received, and the claim may not be reopened. There is no reasonable doubt to be resolved as to reopening the claim. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. B. Depression In January 2005, the Veteran filed a claim for entitlement to service connection for depression, to include secondary to his left ankle disability. The July 2005 rating decision denied entitlement to service connection for depression as the evidence did not show a nexus between the Veteran's service and current depression. Additionally, the rating decision found that the Veteran's claimed left ankle disability was not service-connected, and therefore service connection for depression on a secondary basis to this condition could not be established. The evidence before the VA at the time of the July 2005 decision consisted of the Veteran's service treatment records; VA medical records dated 2004 to 2005; and the Veteran's lay assertions. The Veteran filed a request to reopen his claim for entitlement to service connection for depression. The evidence associated with the claims file relating to depression following the July 2005 rating decision includes VA medical records dated 2012 to 2013; private medical evidence from Dr. H.M.; and the Veteran's lay assertions. The evidence associated with the claims file since July 2005 does not relate to or raise a reasonable probability of establishing a nexus between the Veteran's service and current depression. The new private and VA medical records show continued treatment for depression. These records affirm that the Veteran has a current disability. However, the existence of a current disability was established in the July 2005 rating decision, and as such this evidence does not relate to an unestablished fact necessary to substantiate the claim. No new evidence has been submitted that raises a reasonable probability of establishing a nexus between the Veteran's service and depression. The Veteran submitted November 2013 and August 2016 treating notes from Dr. H.M., which stated that depression was secondary to the Veteran's physical conditions. Secondary service connection was considered in the July 2005 rating decision, but it could not be established because the Veteran did not have a service-connected disability. No new evidence has been submitted showing a reasonable probability of establishing service connection for a physical disability. As such, the new evidence submitted is not material. Other than reiterating his previous assertions that his depression is secondary to his left ankle disability, the Veteran has not offered any additional evidence that reflects that his depression is related to his military service. After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim of entitlement to service connection for depression has not been received, and the claim may not be reopened. There is no reasonable doubt to be resolved as to reopening the claim. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. II. Service Connection, Back Disability The Veteran asserts that his low back disability is secondary to his left ankle disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a non-service-connected disability by a service connected disability. The Veteran was diagnosed with lumbar degenerative disc disease in a June 2013 VA examination. As such, the Veteran has a present disability, which satisfies the first element of direct service connection. The preponderance of the evidence is against the grant of service connection on a direct or presumptive chronic basis for a low back disability. The Veteran's service treatment records do not show any treatment for, or symptoms of, a low back disability. The post-service medical records, including the Veteran's own statement, support that he did not experience symptoms of a back disability until 1991, approximately 28 years after service. The June 2013 VA examiner stated that Veteran's back disability is at least as likely as not due to the natural process of aging in the Veteran. There is no evidence of record relating the Veteran's low back disability to his active service, or indicating that the Veteran's low back disability manifested to a compensable degree within one year of discharge from service. The Board acknowledges the Veteran's statement that his low back disability is secondary to his left ankle disability. However, service connection has not been established for a left ankle disability. As such, the Veteran is not entitled to service connection on a secondary basis. The preponderance of the evidence weighs against a grant of service connection for the Veteran's low back disability on a direct, secondary, or presumptive basis. As such, the claim of entitlement to service connection for a low back disability must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a left ankle disability, and therefore the appeal is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for depression, and therefore the appeal is denied. Entitlement to service connection for a low back disability is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs