Citation Nr: 18145403 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 16-35 420A DATE: October 30, 2018 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a left eardrum disability is denied. New and material evidence having not been received, the appeal to reopen entitlement to service connection for schizoaffective disorder is denied. FINDINGS OF FACT 1. 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 left foot disability. 2. 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 left eardrum disability. 3. The evidence associated with the claims file after the May 2007 rating decision is cumulative and redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for schizoaffective disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left eardrum disability have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for reopening a claim for entitlement to service connection for schizoaffective disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1994 through July 1995 and from March 2003 through May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017 the Veteran’s attorney submitted a timely motion to withdraw representation, in which good cause for such withdrawal was shown. 38 C.F.R. § 20.608. The Veteran is unrepresented. Duties to Notify and to Assist In a case in which a veteran’s service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist him in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). VA requested the Veteran’s service treatment records from the VA Records Management Center (RMC) in March 2006. 38 C.F.R. § 3.159(c)(2). In April 2006, correspondence from the RMC indicated that no treatment records could be located. VA requested the Veteran’s service treatment records from the National Personnel Records Center (NPRC). In September 2006, correspondence from the NPRC indicated that no personnel records were received by this center and referred VA to the U.S. Army Human Resources Command. In December 2006, correspondence from the U.S. Army Human Resources Command indicated that it had the Veteran’s statement of service on record, however, it was unable to locate the Veteran’s military medical records. VA requested the Veteran’s military service records from the Georgia Department of Defense Military Division in August 2006, December 2006, and January 2007; from the Florida State Arsenal and the New York State Adjutants General in August 2006; and from the National Guard Bureau in August 2006 and December 2006. No response was received from either department. VA requested the Veteran’s military service records from the Alabama State Adjutants General in August 2006 and received a response that there were no records on file and nothing to indicate the Veteran was a member of the Alabama National Guard. VA requested the Veteran’s military service records from the Georgia Army National Guard in August 2006, December 2006, and January 2007. In January 2007, correspondence from the Georgia Army National Guard indicated they have no record showing any service for the Veteran in the Georgia National Guard. The Veteran was informed in June 2006 that VA was unable to locate his service medical records. He was asked to submit proof of service; military medical records, if he had them; and name, mailing address, and telephone number of the reserve or guard unit that he was associated with. In August 2006, the Veteran was asked to send his certificate of release or discharge from active duty (DD Form 214) or other separation papers for all periods of service. The Veteran was again informed in February 2007 and March 2007 that VA was unable to locate his service medical records and that future efforts to locate them would be futile. He was asked to submit his service medical records if he had them. In March 2007, VA made a formal finding of unavailability of the Veteran’s service medical records. The Veteran was again informed in January 2013 that VA was unable to provide him with a copy of his service treatment records because they were not in VA’s possession. He was provided a Request Pertaining to Military Records (Standard Form 180) to assist with his request. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA’s duty to assist with records has been met. The Veteran has not made any other arguments concerning the Veterans Claims Assistance Act of 2000 (VCAA). 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 duty to assist argument). The Veteran was not afforded a VA examination. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no left eardrum disability or no left foot disability, to include the Veteran’s big toe, no examination is required. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 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)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left foot disability. The Veteran contends he has a left foot disability, to include his big toe, from doing tactical movements in his infantry unit during active service. He asserts he had to carry a backpack with heavy equipment during military training without having the correct boots on, which resulted in a lot of pressure on his left foot and big toe and misalignment from the bone. The Board concludes that the Veteran does not have a current diagnosis of a left foot disability, to include his big toe, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Although most of the Veteran’s service medical records were unable to be located, the Board has considered the Veteran’s 2004 post deployment health assessment, private physician treatment records from February 2006 through April 2006, and outpatient treatment records from July 2004 through October 2004. These documents reflect the overall physical and mental health of the Veteran. The Veteran did not indicate any left foot injury, to include his big toe, in any of these medical documents. Furthermore, the Veteran’s post-service treatment records do not indicate any left foot injury, to include his big toe. While the Veteran believes he has a current diagnosis of a left foot disability, to include his big toe, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Although the Veteran has reported pain in his left foot, to include his big toe, pain can only constitute a disability where it results in functional impairment. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). As the record contains no objective evidence establishing any functional impairment of the Veteran’s left foot, to include his big toe, due to pain, service connection is not warranted. See Id. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. 2. Entitlement to service connection for a left eardrum disability. The Veteran contends he has a left eardrum disability from mortar firing during active service. He asserts the Army did not have ear protection at the time and it resulted in a scar in his left ear. This claim is separate from the Veteran’s bilateral hearing loss claim, which is pending before the RO. The Board concludes that the Veteran does not have a current diagnosis of a left eardrum disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Although most of the Veteran’s service medical records were unable to be located, the Board has considered the Veteran’s 2004 post deployment health assessment, private physician treatment records from February 2006 through April 2006, and outpatient treatment records from July 2004 through October 2004. These documents reflect the overall physical and mental health of the Veteran. The Veteran did not indicate any left eardrum injury in any of these medical documents. Specifically, it is noted that the Veteran’s ear was clear. See 2004 VA Primary Care H & P Note. Furthermore, the Veteran’s post-service treatment records do not indicate any left eardrum injury. While the Veteran believes he has a current diagnosis of a left eardrum disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Although the Veteran has reported pain in his left eardrum, pain can only constitute a disability where it results in functional impairment. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). As the record contains no objective evidence establishing any functional impairment of the Veteran’s left eardrum due to pain, service connection is not warranted. See Id. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for schizoaffective disorder. The Veteran originally filed a claim for entitlement to service connection for a schizoaffective disorder (claimed as mental condition) in March 2006. In the May 2007 rating decision, the RO denied the Veteran’s original claim on the grounds that the condition neither occurred in nor was caused by service. The RO notified the Veteran of the decision. The Veteran did not appeal this rating decision; nor was new and material evidence received prior to the expiration of the appeal period or prior to the appellate decision if a timely appeal had been filed. 38 C.F.R. § 3.156(b). Therefore, the decision became final one year after it was mailed to the Veteran. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). In August 2012, the Veteran sought to reopen the claim. In the August 2013 rating decision, the RO denied reopening the claim because the evidence submitted was not new and material. However, the Board must still determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). The last final denial regarding the claim is the May 2007 rating decision. Since the May 2007 rating decision is final, the Veteran’s current service connection claim for schizoaffective disorder may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Se¬e 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see Barnett v. Brown, 8 Vet. App. 1 (1995). “New” evidence is defined as 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence in May 2007 included the Veteran’s post deployment health assessment, private physician treatment records from February 2006 through April 2006, outpatient treatment records from July 2004 through October 2004, notification of failure to report for VA examination, and a formal finding on the unavailability of service medical records. Evidence received since the May 2007 rating decision include VA treatment records, which have a negative screening for PTSD, duplicative copies of the Veteran’s DD Form 214, and the Veteran’s lay statements indicating symptoms of a mental condition due to his service in Iraq. The Veteran’s lay statements indicate symptoms of a mental condition such as: inability to sleep, bad dreams, inability to stay focused, having jitters regularly, social impairment of judgment, mood, and thoughts, inability to be around people yelling, depression, anxiety, panic attacks, mild memory loss, routine behavior, and that he stays to himself. The Veteran’s lay statements indicate a current disability. However, the record contains competent evidence suggesting a current diagnosis of schizoaffective disorder, which the RO confirmed during the prior denial. The Veteran also indicates that his current symptoms are due to his service. However, as part of his initial claim, the Veteran inherently argued that his disability and symptoms were due to his service. Therefore, all of the Veteran’s lay statements, received after the May 2007 rating decision, are cumulative and redundant of evidence previously of record. In addition, service records regarding enlistment and reenlistment were received after the May 2007 rating decision. However, these service records are unrelated to the Veteran’s service in Iraq or to his claim of entitlement to service connection for schizoaffective disorder. See 38 C.F.R. § 3.156(c). As such, they are not relevant, nor are they material. Therefore, the Board finds there is no new and material evidence that reasonably raises the possibility of substantiating the claim of service connection for schizoaffective disorder. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel