Citation Nr: 18145027 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-38 775 DATE: October 26, 2018 ORDER New and material evidence not having been received, the previously denied claim for entitlement to service connection for bilateral hearing loss is not reopened. New and material evidence not having been received, the previously denied claim for entitlement to service connection for tinnitus is not reopened. New and material evidence not having been received, the previously denied claim for entitlement to service connection for lupus is not reopened. New and material evidence not having been received, the previously denied claim for entitlement to service connection for tuberculosis is not reopened. Entitlement to service connection for bone spurs is denied. Entitlement to service connection for an optical condition is denied. Entitlement to service connection for hernias is denied. REMANDED Entitlement to service connection for sleep issues is remanded. Entitlement to service connection for a mental condition is remanded. FINDINGS OF FACT 1. A December 1975 rating decision denied the Veteran’s original claim for entitlement to service connection for tuberculosis; the Veteran did not timely appeal that denial; and new and material evidence was not received as to the issue within the one-year appeal period following issuance of the December 1975 rating decision. 2. An April 2006 rating decision denied the Veteran’s original claims for entitlement to service connection for bilateral hearing loss, tinnitus, and lupus, and denied reopening of the previously denied claim for entitlement to service connection for tuberculosis; the Veteran did not timely appeal those denials; and new and material evidence was not received as to the issues within the one-year appeal period following issuance of the April 2006 rating decision. 3. An October 2010 rating decision denied opening of the previously denied claims for entitlement to service connection for tuberculosis and lupus; the Veteran submitted a timely notice of disagreement as to those denials; however, the Veteran did not submit a timely substantive appeal following issuance of a statement of the case as to those issues in September 2011. 4. New evidence received since the April 2006 is not material to the issue of entitlement to service connection for bilateral hearing loss. 5. New evidence received since the April 2006 is not material to the issue of entitlement to service connection for tinnitus. 6. New evidence received since the September 2011 statement of the case is not material to the issue of entitlement to service connection for lupus. 7. New evidence received since the September 2011 statement of the case is not material to the issue of entitlement to service connection for tuberculosis. 8. The preponderance of the evidence is against finding that the Veteran’s reported bone spurs began during his active service, or is otherwise related to an in-service injury, event, or disease. 9. The preponderance of the evidence is against finding that the Veteran’s reported optical condition began during his active service, or is otherwise related to an in-service injury, event, or disease. 10. The preponderance of the evidence is against finding that the Veteran’s reported hernias began during his active service, or are otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The December 1975 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. 3.104, 20.302, 20.1103. 2. The April 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. 3.104, 20.302, 20.1103. 3. The October 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. 3.104, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim for entitlement to service connection for bilateral hearing loss; therefore, the claim is not reopened. 38 U.S.C. §§ 1110, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. 5. New and material evidence has not been received to reopen the claim for entitlement to service connection for tinnitus; therefore, the claim is not reopened. 38 U.S.C. §§ 1110, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. 6. New and material evidence has not been received to reopen the claim for entitlement to service connection for lupus; therefore, the claim is not reopened. 38 U.S.C. §§ 1110, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. 7. New and material evidence has not been received to reopen the claim for entitlement to service connection for tuberculosis; therefore, the claim is not reopened. 38 U.S.C. §§ 1110, 5108, 7105; 38 C.F.R. §§ 3.156, 3.303. 8. The criteria for entitlement to service connection for bone spurs have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 9. The criteria for Entitlement to service connection for an optical condition have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 10. The criteria for Entitlement to service connection for hernias have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1970 to February 1971. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the issues remanded herein, and there is no indication that evidence developed as part of those actions may be relevant to the issues decided herein. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Reopening Issues In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 1. Previously denied claims The Veteran submitted an original claim for entitlement to service connection for fever and chills in September 1975. In support of that claim, he submitted medical records showing treatment for pulmonary tuberculosis in July and August 1975. The Regional Office denied the Veteran entitlement to service connection for pulmonary tuberculosis and flu, claimed as fever and chills, in the December 1975 rating decision. In so doing, the Regional Office explained that the record showed the Veteran was treated for fever and chills in January 1971, but that there was no residual disability noted on his discharge examination. The Regional Office also acknowledged that the Veteran was treated for pulmonary tuberculosis in July and August 1975. The letter informing the Veteran of the December 1975 rating decision explained to the Veteran his right to appeal the decision. The Veteran did not submit a timely notice of disagreement as to the December 1975 rating decision, and new and material evidence as to the issue was not received within the one-year appeal period following issuance of the December 1975 rating decision. As such, the Veteran did not complete a timely appeal of the December 1975 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. In March 2005, the Veteran submitted an original claim for entitlement to service connection for bilateral hearing loss, tinnitus, and lupus, and a petition to reopen the previously denied claim for entitlement to service connection for tuberculosis. In support of the lupus and tuberculosis claims, he submitted medical records showing diagnoses in March 1990 of systemic lupus erythematosis and old tuberculosis. The Veteran underwent a VA audiological examination in May 2005, which revealed current bilateral hearing loss and tinnitus. However, the May 2005 VA examiner opined that the bilateral hearing loss and tinnitus were not at least as likely as not related to the Veteran’s active service, to include in-service noise exposure. The Regional Office denied the Veteran entitlement to service connection for bilateral hearing loss, tinnitus, and lupus, and denied reopening of the previously denied claim for entitlement to service connection for tuberculosis in the April 2006 rating decision. In so doing, the Regional Office cited the May 2005 VA examiner’s negative nexus opinion as to bilateral hearing loss and tinnitus, and explained that the Veteran’s lupus was not diagnosed during his active service or within a presumptive period following separation from active service. The letter informing the Veteran of the April 2006 rating decision explained his right to appeal the decision. The Veteran did not submit a timely notice of disagreement as to the April 2006 rating decision, and new and material evidence as to the issues was not received within the one-year appeal period following issuance of the April 2006 rating decision. As such, the Veteran did not complete a timely appeal of the April 2006 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. The Veteran submitted a petition to reopen the previously denied claims for entitlement to lupus and tuberculosis in August 2010. In that petition, the Veteran argued that the conditions were due to exposure to chemicals while serving at Kelly Airforce Base. The Regional Office denied the Veteran’s petition in the October 2010 rating decision. The Veteran submitted a timely notice of disagreement as to the October 2010 rating decision in December 2010. The Regional Office issued a statement of the case as to the issues in September 2011 that continued the denial of the Veteran’s petition to reopen the previously denied claims. The statement of the case cited to the relevant statutes and regulations and provided reasons and bases for the denial. The letter notifying the Veteran of the September 2011 statement of the case explained to the Veteran his right to appeal the denial to the Board, to include through the submission of a timely substantive appeal. The Veteran did not submit a timely substantive appeal following issuance of the September 2011 statement of the case. As such, the Veteran did not complete a timely appeal to the Board of the October 2010 rating decision. See 38 C.F.R. §§ 3.156, 20.201, 20.302. Therefore, the October 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Reopening of the previously denied claims The Veteran has not submitted further evidence or arguments in support of his claims for entitlement to service connection for bilateral hearing loss and tinnitus since the final April 2006 rating decision. The Veteran’s August 2013 petition to reopen the previously denied claims contains no such evidence or argument. His October 2014 notice of disagreement and August 2016 substantive appeal also contain no such evidence or argument. The Veteran has not submitted or identified any outstanding medical or nonmedical records relevant to those disabilities. Accordingly, the Board concludes that new and material evidence to reopen the finally denied claims for entitlement to service connection for bilateral hearing loss and tinnitus has not been received, the benefit-of-the-doubt doctrine is not for application, and the claims for entitlement to service connection for bilateral hearing loss and tinnitus are not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran also has not submitted further evidence or arguments in support of his claims for entitlement to service connection for tuberculosis and lupus since the September 2011 statement of the case. The Veteran’s August 2013 petition to reopen the previously denied claims contains no such evidence or argument. His October 2014 notice of disagreement and August 2016 substantive appeal also contain no such evidence or argument. The Veteran has not submitted or identified any outstanding medical or nonmedical records relevant to those disabilities. Accordingly, the Board concludes that new and material evidence to reopen the finally denied claims for entitlement to service connection for tuberculosis and lupus has not been received, the benefit-of-the-doubt doctrine is not for application, and the claims for entitlement to service connection for tuberculosis and lupus are not reopened. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Issues The Veteran seeks entitlement to service connection for bone spurs, an optical condition, and hernias. He has not presented any particular arguments as to how such disabilities are related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has not submitted or identified any medical or nonmedical records that would confirm that he had a service-connectable optical condition, hernia, or bone spur during or in proximity to the claim period. His service treatment records do not show complaints of or treatment for an optical condition, hernia, or bone spurs. Rather, they reflect that the Veteran denied vision problems; hernias; and bone, joint, or other deformity on a February 1971 report of medical history for separation from active service. In addition, he had normal evaluations of the eyes, abdomen, viscera, upper extremities, lower extremities, feet, spine, and musculoskeletal system, and 20/20 vision in both eyes at a February 1971 medical examination for separation from active service. There simply is no probative evidence of record showing that the Veteran currently has bone spurs, an optical condition, or hernias that may be related to an in-service injury, event, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for bone spurs, an optical condition, and hernias. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Entitlement to service connection for sleep issues and for a mental condition are remanded. The Veteran seeks entitlement to service connection for sleep issues and for a mental condition. His service treatment records reflect that he reported nervous stomach trouble at the time of his entrance into active service, but that he had a normal psychiatric evaluation at a May 1970 medical examination for entrance into active service. In January 1971, he reported that he had an upset stomach, was nervous, and could not sleep due to his mother being sick. Later that same month, he reported that he was dealing with family problems and felt “resounding anxiety”. He endorsed trouble sleeping, depression or excessive worry, and nervous trouble on the February 1971 report of medical history for separation from active service. In view of the foregoing, the Board concludes that the low threshold for providing a VA examination as to the issues of entitlement to service connection for sleep issues and for a mental condition have been met, and that the issues must be remanded so that such and examination may be scheduled. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep problems and/or mental conditions. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any such diagnosed condition is related to an in-service injury, event, or disease, including the sleep problems, depression, and anxiety the Veteran reported during his active service. The examiner must also opine as to whether it is at least as likely as not that the Veteran demonstrated psychoses during his active service or within one year of his separation from active service. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel