Citation Nr: 18145336 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-24 550 DATE: October 26, 2018 ORDER New and material evidence having not been received, the application to reopen a claim for service connection for a back disability is denied. New and material evidence having not been received, the application to reopen a claim for service connection for a left ankle disability is denied. Service connection for a neck disability is denied. Service connection a right ankle disability is denied. Service connection for a left foot disability is denied. Service connection a right foot disability is denied. Service connection for sleep apnea is denied. Service connection for bilateral lower extremity neuropathy is denied. REMANDED Service connection for a mental disability is remanded. Service connection for a headache disability is remanded. FINDINGS OF FACT 1. A September 2012 rating decision found that new and material evidence had not been received to reopen a claim for service connection for a back disability. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. 2. New evidence raising a reasonable possibility of substantiating the claim for service connection for a back disability has not been received. 3. A March 1994 rating decision denied a claim for service connection for a left ankle disability. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. 4. New evidence raising a reasonable possibility of substantiating the claim for service connection for a left ankle disability has not been received. 5. The preponderance of the evidence of record is against finding that the Veteran’s neck disability began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right ankle disability. 7. The preponderance of the evidence of record is against finding that the Veteran’s left foot disability began during active service, or is otherwise related to an in-service injury, event, or disease. 8. The preponderance of the evidence of record is against finding that the Veteran’s right foot disability began during active service, or is otherwise related to an in-service injury, event, or disease. 9. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea. 10. The preponderance of the evidence of record is against finding that the Veteran’s bilateral lower extremity neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The September 2012 rating decision that found that new and material evidence had not been received to reopen a claim for service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The March 1994 rating decision that denied a claim for service connection for a left ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim for service connection for a left ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 9. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 10. The criteria for service connection for bilateral lower extremity neuropathy have not been met. 38 U.S.C. §§ 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Application to Reopen Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “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 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) (2018). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). 1. Back disability The claim for service connection for a back disability was originally denied in a March 1994 rating decision. The claim was denied because while the evidence showed treatment for back pain in service, there was no evidence of any residual disability in service or a link between any resultant back disability and service, and there was evidence of a post-service work-related injury as the cause of current disability. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue. 38 C.F.R. § 3.156(b) (2018). Thus, the decision became final. A September 2012 rating decision found that new and material evidence had not been received to reopen a claim for service connection for a back disability. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue. Thus, that decision became final. The pertinent evidence received since the September 2012 denial includes VA medical records and statements from the Veteran regarding his back disability. While the medical records are new and show that the Veteran currently has a back disability, they do not show that the back disability is related to service. Therefore, while new, the evidence is not material. The Veteran’s statements asserting that he injured his back in service were previously of record and considered at the time of the prior denial. Therefore, the evidence is redundant and is not new evidence. In sum, while evidence of a current back disability has been received, no evidence of a link to active service has been received. The Board thus finds that the new evidence does not help to establish that the Veteran currently has a back disability that had its onset in service or is otherwise related to service. Therefore, the new evidence, even when considered credible for the purpose of determining whether it is material, does not create a reasonable possibility of substantiating the claim and therefore the new evidence is not material. The Board concludes that new and material evidence has not been received to reopen the claim for service connection for a back disability. Thus, the claim remains denied. 2. Left ankle disability The claim for service connection for a left ankle disability was originally denied in a March 1994 rating decision. The claim was denied because while the evidence showed treatment for left ankle sprains in service, there was no evidence of current disability. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue. Thus, the decision became final. The pertinent evidence received since the March 1994 denial includes VA medical records and statements from the Veteran regarding his left ankle disability. While the medical records are new and show that the Veteran currently has pain in the left ankle, the pain is radiating from his left foot, a claim for service connection for which is be denied. The medical records do not show that he currently has a left ankle disability. Therefore, while new, the evidence is not material. The Veteran’s statements asserting that he injured his left ankle in service were previously of record and considered at the time of the prior denial. Therefore, the evidence is redundant and is not new evidence. In sum, while evidence of a current left foot disability has been received, no evidence of a current left ankle disability has been received. The Board thus finds that the new evidence does not help to establish that the Veteran currently has a left ankle disability that had its onset in service or is otherwise related to service. Therefore, the new evidence, even when considered credible for the purpose of determining whether it is material, does not create a reasonable possibility of substantiating the claim and therefore the new evidence is not material. The Board concludes that new and material evidence has not been received to reopen the claim for service connection for a left ankle disability. Thus, the claim remains denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within the year after active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). 3. Service connection for a neck disability The service treatment records do not show any complaints, findings, or diagnoses of any neck problems. At a January 1994 VA examination, the Veteran reported a history of chronic neck pain since 1992, which dates the onset of symptoms to 9 years after discharge from service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the Veteran asserts that his neck disability is related to service, there is no competent evidence indicating a link between his neck disability and service. The medical evidence of record does not indicate a link between his neck disability, diagnosed almost a decade after service, and any in-service injury. A lay person is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence regarding continuity of symptoms after service, if credible, is competent regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, the record dates the onset of symptoms to 9 years after discharge from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his neck disability. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran’s neck disability began during active service, or is otherwise related to an in-service injury, event, or disease. In conclusion, service connection for a neck disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Service connection a right ankle disability The service treatment records do not show any complaints, findings, or diagnoses of any right ankle problems. At a January 1994 VA examination, the Veteran reported a history of ankle problems in service but could not remember which one. He denied any right ankle problems and noted that currently his ankles do not sprain easily and his feet were fine. Examination of the right ankle was normal. A December 2013 VA medical record shows that the Veteran has bilateral foot pain that has moved into the ankles. A January 2014 VA medical record also shows that he has pain in both soles of the feet that radiates into the ankles. While the Veteran asserts that he has a right ankle disability related to service, there is no competent evidence of current disability. The ankle pain has been attributed to a foot disability. While the Board appreciates the Veteran’s statements regarding disability onset and chronicity of symptomatology, in this case, the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. As such, he is not competent to address the diagnosis or etiology of his disability. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right ankle disability. In conclusion, service connection for a right ankle disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 5. Service connection for a left foot disability The service treatment records do not show any complaints, findings, or diagnoses of any left foot problems, other than ankle sprains which have been addressed in the application to reopen. At a January 1994 VA examination, the Veteran reported a history of ankle problems in service but could not remember which one. He noted that currently his feet were fine. Examination of the feet was normal. A December 2013 VA medical record shows a history of bilateral foot pain that began a couple years ago and has worsened. At a September 2014 VA examination, the Veteran reported burning pain in both heels for the past five years. The examiner provided a diagnosis of bilateral plantar fasciitis and opined that the disorder was not incurred in or caused by service. The examiner explained that the Veteran’s foot disorder does not reflect a progression of an injury that occurred in service but rather was due to post-service activities. While the Veteran asserts that his left foot disability is related to service, there is no evidence of a left foot problem in service or for over 25 years after discharge from service. The passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. Moreover, a VA examiner opined that the left foot disability is not related to service. While the Board appreciates the Veteran’s statements regarding disability onset and chronicity of symptomatology, in this case, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, he is not competent to address the etiology of his disability. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran’s left foot disability began during active service, or is otherwise related to an in-service injury, event, or disease. In conclusion, service connection for a left foot disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 6. Service connection a right foot disability The service treatment records show that the Veteran cut the bottom of his right foot in August 1981 and required stitches which were removed later that month. There are no further pertinent records. There are no complaints, findings, or diagnoses of any orthopedic issues related to the right foot. As noted, at a January 1994 VA examination, the Veteran reported that his feet were fine and examination of the feet was normal. A December 2013 VA medical record shows a history of bilateral foot pain that began a couple years ago and has worsened. At a September 2014 VA examination, the Veteran reported burning pain in both heels for the past five years. The examiner provided a diagnosis of bilateral plantar fasciitis and opined that the disorder was not incurred in or caused by service. The examiner explained that the Veteran’s foot disorder does not reflect a progression of an injury that occurred in service but rather was due to post-service activities. While the Veteran asserts that his right foot disability is related to service, there is no evidence of a right foot problem in service or for over 25 years after discharge. As noted, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. Moreover, a VA examiner opined that the right foot disability is not related to service. While the Board appreciates the Veteran’s statements regarding disability onset and chronicity of symptomatology, in this case, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, he is not competent to address the etiology of his disability. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran’s right foot disability began during active service, or is otherwise related to an in-service injury, event, or disease. In conclusion, service connection for a right foot disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 7. Service connection for sleep apnea The service treatment records do not show any complaints, findings, or diagnoses of sleep apnea. A November 2005 VA medical record shows that the Veteran asked for a sleep study but the physician noted that the history was inconclusive for sleep apnea. A February 2006 VA medical record shows that the Veteran had insomnia but not sleep apnea. While the Veteran asserts that he has sleep apnea related to service, there is no competent evidence of current disability. The only pertinent diagnosis of record is that of insomnia. While the Board appreciates the Veteran’s statements regarding disability onset and chronicity of symptomatology, in this case, the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. As such, he is not competent to address the diagnosis or etiology of his disability. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea. In conclusion, service connection for sleep apnea is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 8. Service connection for bilateral lower extremities neuropathy The service treatment records do not show any complaints, findings, or diagnoses of any neuropathic problems in his lower extremities. As noted, at a January 1994 VA examination, the Veteran reported a history of back pain since 1990 that worsened in 1992. He noted that the pain radiates to the groin with some pain in the left lower extremity at times. A December 2013 VA medical record shows a history of bilateral foot pain that began a couple years ago and a September 2014 VA examination report reflects a history of burning pain in both feet for the past five years. While the Veteran asserts that his neuropathy in his lower extremities is related to service, there is no evidence of neuropathy symptoms in service or for 9 years after discharge from service. As noted, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. While the Board appreciates the Veteran’s statements regarding disability onset and chronicity of symptomatology, in this case, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, he is not competent to address the etiology of his disability. Layno, 6 Vet. App. 465; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran’s bilateral lower extremity neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease. In conclusion, service connection for bilateral lower extremity neuropathy is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Service connection for a mental disability is remanded. In a brief received in November 2016, the Veteran’s representative asserted that the Veteran’s depressive disorder is secondary to his service-connected right ear otitis external, tinnitus, and bilateral hearing loss. The representative submitted medical treatise evidence indicating a link between tinnitus and depression. Thus, the Veteran should be afforded an examination to obtain an opinion on the matter. 2. Service connection for a headache disability is remanded. Also in the November 2016 brief, the representative asserted that the Veteran’s headache disability is secondary to his service-connected right ear otitis external, tinnitus, and bilateral hearing loss, and also caused or aggravated by his as yet service-connected depressive disorder. The representative submitted medical treatise evidence indicating a link between tinnitus and headaches. Thus, the Veteran should be afforded an examination to obtain an opinion on the matter. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his mental disability. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s mental disability had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s mental disability was caused or aggravated by the service-connected right ear otitis external, tinnitus, and/or bilateral hearing loss. The examiner should discuss the Veteran’s service treatment records, VA medical records, prior VA examination reports, and medical treatises submitted by the Veteran. The examiner should also discuss the Veteran’s statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. 2. Schedule the Veteran for a VA examination to determine the etiology of his headache disability. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability was caused or aggravated by the service-connected right ear otitis external, tinnitus, and/or bilateral hearing loss. The examiner should discuss the Veteran’s service treatment records, VA medical records, prior VA examination reports, and medical treatises submitted by the Veteran. The examiner should also discuss the Veteran’s statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. 3. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel