Citation Nr: 18147683 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-02 340 DATE: November 5, 2018 ORDER New and material evidence has not been received and the claim to reopen the issue of entitlement to a bilateral leg disability (claimed as bilateral chronic limb pain) is denied. New and material evidence has not been received and the claim to reopen the issue of entitlement to service connection for an eye disability manifested by nuclear cataract and retinal macular scar/loss of vision (claimed as retinal hemorrhage) is denied. Service connection for hepatitis C is denied. Service connection for a neck disability is denied. Service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a psychiatric disorder, to include PTSD and depression, is remanded. FINDINGS OF FACT 1. In a January 2009 rating decision, the RO denied entitlement to service connection for bilateral chronic limb pain (now claimed as a bilateral leg disability); the Veteran did not appeal that decision and it became final. 2. A September 2011 rating decision denied the Veteran’s petition to reopen his claim for bilateral chronic limb pain (now claimed as a bilateral leg disability) because new and material evidence had not been received; although the Veteran started an appeal of the denial, he withdrew the appeal in March 2012 and the decision became final. 3. Evidence received since the September 2011 rating decision is new but does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral chronic limb pain (now claimed as a bilateral leg disability). 4. In a November 2013 rating decision, the RO denied entitlement to service connection for an eye disability manifested by nuclear cataract and retinal macular scar (claimed as retinal hemorrhage); although the Veteran started an appeal of the denial, he withdrew the appeal in April 2014 and the decision became final. 5. Evidence received since the November 2013 rating decision is new but does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for an eye disability manifested by nuclear cataract and retinal macular scar/loss of vision (claimed as retinal hemorrhage). 6. The Veteran does not have a current diagnosis of hepatitis C; he did not have clinically diagnosed hepatitis C when he filed his claim or any time during the pendency of the claim. 7. The Veteran does not have a current diagnosis of a neck disability; he did not have a clinically diagnosed neck disability when he filed his claim or any time during the pendency of the claim. 8. The Veteran’s sleep apnea was not incurred in or otherwise etiologically related to during active duty service and was not caused or aggravated by injury in the line of duty during active duty for training service. CONCLUSIONS OF LAW 1. The November 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for an eye disability manifested by nuclear cataract and retinal macular scar/loss of vision (claimed as retinal hemorrhage) have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The January 2009 and September 2011 rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 4. The criteria for reopening the claim of entitlement to service connection for bilateral chronic limb pain (claimed as a bilateral leg disability) have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 6. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 7. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 101(24), 1110, 1131; 38 C.F.R. §§ 3.6(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1960 to November 1960 with additional service in the Air National Guard of Nebraska. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and January 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 2018, the issues of entitlement to service connection for a back disorder, a right shoulder disorder, and a left shoulder disorder were remanded for additional development. These issues will not be addressed in this decision. If the benefits sought on appeal are not granted, then a supplemental statement of the case (SSOC) will be issued and the electronic claims file will be returned to the Board for appellate review. Neither the Veteran nor his private attorney has raised any issues with the duty to notify or duty to assist. 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). Thus, the Board need not discuss any potential issues in this regard. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. “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 evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant’s claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant’s claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). 1. Whether new and material evidence has been received to reopen the claim of entitlement to bilateral chronic limb pain (claimed as a bilateral leg disability). Service connection for bilateral chronic limb pain was originally denied in a January 2009 rating decision. The Veteran did not appeal the rating decision, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. In May 2011, the Veteran filed a petition to reopen the claim of entitlement to service connection for bilateral chronic limb pain. A September 2011 rating decision denied the Veteran’s petition to reopen his claim because new and material evidence had not been received. Although the Veteran appealed this denial in an October 2011 notice of disagreement and perfected his appeal with an February 2012 substantive appeal to the Board, that appeal was later withdrawn in March 2012. The Veteran filed new claims seeking entitlement to service connection for neuropathy of the bilateral lower and upper extremities. However, these claims were separate and distinct from his claim of entitlement to service connection for bilateral chronic limb pain. Moreover, no new and material evidence was received, nor was a new appeal started, after the withdrawal but within the one-year appeal period. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. In August 2015, the Veteran filed a claim which was interpreted by the RO as another petition to reopen the claim of entitlement to bilateral chronic limb pain (now claimed as a bilateral leg disability). In a September 2015 rating decision, the RO continued to deny the Veteran’s petition to reopen his claim. Specifically, the RO found that new and material evidence had not been received. The Veteran timely appealed that determination. Regardless of the RO’s actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The January 2009 rating decision denied the Veteran’s claim because the service treatment records did not show any treatment for or diagnosis of chronic limb pain in service. Additionally, no line of duty determination was of record that showed an injury during active duty for training. Periodic in-service evaluations did not show any diagnosis of chronic limb pain. Post-service treatment records from a private doctor indicated that the Veteran’s current chronic limb pain may related to military service but that opinion was not supported by rationale. The September 2011 rating decision denied the Veteran’s request to reopen his claim because new private treatment records and buddy statement did not show in-service treatment for chronic limb pain or establish an etiological relationship between the Veteran’s current chronic limb pain and his military service. Since the denial in September 2011, VA has received copies of service treatment records, VA treatment records, and lay statements from the Veteran. This this evidence is “new.” However, it does not show in-service treatment for chronic limb pain or establish an etiological relationship between the Veteran’s current chronic limb pain and his military service. Therefore, the evidence is not “material” because it does not relate to an unestablished fact necessary to substantiate the claim nor does it raise a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156, 4.125(a). As new and material evidence has not been received, the Veteran’s claim is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an eye disability manifested by nuclear cataract and retinal macular scar/loss of vision (claimed as retinal hemorrhage). Service connection for an eye disability manifested by nuclear cataract and retinal macular scar/loss of vision (claimed also as retinal hemorrhage) was originally denied in a November 2013 rating decision because there was no evidence that the Veteran’s eye disability was incurred while he was on active duty or in the line of duty during active duty for training. The RO noted that there was evidence of treatment for a retinal hemorrhage in 1976 and additional treatment for the right eye in 1984 and 1988. However, the RO observed that this treatment did not occur while the Veteran was on active duty or active duty for training. Additionally, the RO denied the claim because the evidence of record did not establish a relationship between the Veteran’s current nuclear cataract and retinal macular scar and his active duty or active duty for training service. Although the Veteran appealed this denial in an January 2014 notice of disagreement and perfected his appeal with an April 2014 substantive appeal to the Board, that appeal was later withdrawn in late April 2014. No new and material evidence was received, nor was a new appeal started, after the withdrawal but within the one-year appeal period. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. In August 2015, the Veteran filed a claim which was interpreted by the RO as petition to reopen the claim of entitlement to an eye disability manifested by nuclear cataract and retinal macular scar/loss of vision (claimed as retinal hemorrhage). In a September 2015 rating decision, the RO continued to deny the Veteran’s petition to reopen his claim. Specifically, the RO found that new and material evidence had not been received. The Veteran timely appealed that determination. Regardless of the RO’s actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the last final denial in November 2013, VA has received copies of service treatment records, VA treatment records, and lay statements from the Veteran. This this evidence is “new.” However, it does not show that the Veteran’s eye disability was incurred while he was on active duty or in the line of duty during active duty for training. Additionally, it does not establish a relationship between the Veteran’s current nuclear cataract and retinal macular scar and his active duty or active duty for training service. Therefore, the evidence is not “material” because it does not relate to an unestablished fact necessary to substantiate the claim nor does it raise a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156, 4.125(a). As new and material evidence has not been received, the Service Connection Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). For purposes of 38 U.S.C. § 101(24), the term “injury” refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a current disability; (2) the in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent regarding a disease with “unique and readily identifiable features” that is “capable of lay observation.” Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to service connection for a neck disability. The Veteran contends that he has hepatitis and a neck disability related to his military service. As noted above, the Veteran served on active duty from May 1960 to November 1960 with additional service in the Air National Guard of Nebraska. The Board must determine whether the Veteran has been diagnosed with hepatitis C or a neck disability that is “at least as likely as not” related to an injury, event, or disease during active duty service or to an injury incurred or aggravated in the line of duty during active duty for training. Based on a comprehensive review of the evidence, the Board concludes that the Veteran did not have hepatitis C or a neck disability when he filed his claim. Moreover, and perhaps more importantly, the evidence of record does not support his contentions that he was clinically diagnosed with hepatitis C or a neck disability at any time during the pendency of the claims. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain, 21 Vet. App. at 321. While the Veteran may believe that he has current diagnoses of hepatitis C and a neck disability, he has not identified any evidence to support such diagnoses. Further, he is not competent to provide such diagnoses in this case. These issues are medically complex, as diagnosing hepatitis C and neck disabilities requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Simple indications of neck pain is not enough, unless there is evidence of a clear mechanical problem caused by the pain, which there is simply not in this case. Consequently, the Board gives more probative weight to the competent medical evidence than to the Veteran’s assertions that he currently has these disabilities. Even if the Board found these problems, there is simply nothing indicating an association between these problems and service from over 60 years ago. 5. Entitlement to service connection for sleep apnea. The Veteran contends that he has sleep apnea related to active duty military service from May 1960 to November 1960 or his additional service in the Air National Guard of Nebraska. 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 injury, event, or disease during active duty service or to an injury incurred or aggravated in the line of duty during active duty for training. The Board concludes that, while the Veteran has a diagnosis of sleep apnea (see, e.g., May 2017 VA psychiatry note), the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an injury, event, or disease during active service or to an injury incurred or aggravated in the line of duty during active duty for training. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The available service treatment records from active duty service and active duty for training do not show any complaints, treatment, or diagnosis regarding sleep apnea or any sleep disorder and they do not demonstrate that the Veteran sustained an injury that caused or aggravated his current sleep apnea. While the Veteran may believe that his sleep apnea is related to his active duty service or his active duty for training service, the fact remains that the Veteran has not identified any incident or injury/aggravation during either period of service. See November 2016 claim, September 2017 notice of disagreement; November 2017 substantive appeal to the Board (VA Form 9). The Board emphasizes that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Board reiterates that the preponderance of the evidence weighs against findings that sleep apnea was incurred in or aggravated by military service. REASONS FOR REMAND A VA examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service incurrence; (3) an indication that the current disability may be related to the in-service incurrence; and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (holding the threshold for determining whether the evidence indicates the current disability may be related to the in-service event is a “low” one); see also 38 U.S.C. § 5103A(d)(2). 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a right foot disability. The Veteran is seeking entitlement to service connection for left and right foot disabilities. When the Veteran filed his August 2015 claim, he did not specify what current left or right foot disability he was claiming – he simply asserted that he had a bilateral foot condition, with pain and loss of range of motion, that resulted in surgery on his right foot in 1981. Nevertheless, a review of the Veteran’s post-service medical records reflects that he walks flat footed, has right foot hallux valgus; and has high arches and bilateral hammer toe deformities. Moreover, his private treatment records reflect that he has “arthritis with left foot pain.” The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis regarding a foot disability while on active duty. However, the Veteran’s active duty for training records show that he complained of having a history of foot problems, that he wore boot supports, and that he had a scar on his right foot above the third phalanx. The Veteran must be afforded a VA examination to ascertain the nature and etiology of any foot disorders found. 3. Entitlement to service connection for a psychiatric disorder, to include PTSD and depression. When the Veteran filed his August 2015 claim, he indicated that he was seeking entitlement to service connection for “an acquired mental health condition due to pain to include depression, anxiety, and anger.” His claim was denied in a September 2015 rating decision. In January 2016, the Veteran appealed that decision. In May 2017, the Veteran filed a claim seeking entitlement to service connection for posttraumatic stress disorder. In an attached statement, the Veteran asserted that he was assigned to “D Company, 1st Battalion, 2nd Training Regiment” from June 1, 1960 to July 31, 1960. He claims that, while participating in a road march, a small aircraft or military observation plane would fly over and drop small flour bags. He stated, “We were supposed to avoid being hit by these bags.” He also stated, “On a day in July 1960, I observed the plane flying too low and it crashed in front of me, less than a block away. As it flew over me, I saw the faces of the two men on the plane stricken with fear, just before the crash.” The Veteran claims that he continues to experience nightmares of the incident which has led to increased drinking and hospitalization for mental health treatment. Post-service VA medical records show that the Veteran has been receiving treatment for various psychiatric symptoms and that he has been assessed by a VA psychiatrist as having PTSD. See, e.g., May 2017 psychiatrist note. Under these circumstances, the RO must take appropriate action to verify the Veteran’s claimed in-service stressor. Thereafter, the RO should schedule the Veteran for a VA psychiatric examination to ascertain the nature and etiology of all psychiatric disorders found on evaluation. The matters are REMANDED for the following action: 1. The RO or AMC should undertake appropriate development to verify through official channels all periods of active duty service, ACDUTRA, and INACDUTRA. The actual dates of service are needed. 2. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his claimed left and right foot disabilities and his psychiatric disorder, to include PTSD and depression. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left or right foot disability found on evaluation. For each foot disability diagnosed, the examiner must opine as to whether it is “at least as likely as not” (a 50 percent or greater probability) that any foot disorder had its onset during, or is otherwise related to, his ACDUTRA service (or INACDUTRA service if deemed appropriate). 4. Contact the appropriate records repositories and attempt to corroborate the Veteran’s in-service stressor which he alleges occurred while he was assigned to “D Company, 1st Battalion, 2nd Training Regiment” from June 1, 1960 to July 31, 1960. He claims that, while participating in a road march, a small aircraft or military observation plane would fly over and drop small flour bags. He stated, “We were supposed to avoid being hit by these bags.” He also stated, “On a day in July 1960, I observed the plane flying too low and it crashed in front of me, less than a block away. As it flew over me, I saw the faces of the two men on the plane stricken with fear, just before the crash.” If more details are needed, contact the Veteran to request the information. 5. After the Veteran’s reported stressor has been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorders found on evaluation. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is “at least as likely as not” related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is “at least as likely as not” (a 50 percent or greater probability) related to an in-service injury, event, or disease. In providing this opinion, the examiner should address the Veteran’s lay statements. The examiner should provide adequate rationale for all medical conclusions reached. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel