Citation Nr: 18148413 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-38 021 DATE: November 8, 2018 ORDER Reopening of a claim of service connection for a right wrist injury is granted. Reopening of a claim of service connection for residual of a traumatic brain injury (TBI), to include headaches, a cyst on the brain, dizziness, falling down, depression, anxiety, and schizophrenia, is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for status post fifth toe fracture is remanded. Entitlement to service connection for status first metatarsal osteotomy, left, is remanded. FINDINGS OF FACT 1. In an unappealed May 2001 rating decision, service connection for residuals of TBI was denied on the grounds of a lack of injury in service, or a showing of a nexus to service. 2. Evidence associated with the claims file since the May 2006 rating decision is new, but it does not raise a reasonable possibility of substantiating the underlying claim of for service connection for residuals, TBI. 3. In an unappealed May 2001 rating decision, service connection for a right wrist injury was denied on the grounds of a lack of injury in service, or a showing of a nexus to service. 4. Evidence associated with the claims file since the May 2001 rating decision was not previously considered by agency decision makers, addresses an unestablished fact, and raises a reasonable possibility of substantiating the underlying claim of for service connection for a right wrist injury. 5. Currently diagnosed diabetes mellitus was not first manifested on active duty or for many years following separation from service; and is not otherwise shown to be related to military service. CONCLUSIONS OF LAW 1. The May 2001 rating decision denying service connection for a right wrist injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim for service connection for residuals of a right wrist injury have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The May 2001 rating decision denying service connection for residuals, TBI is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. The criteria for reopening the claim for service connection for residuals of TBI have not been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. Diabetes mellitus was not incurred in or aggravated by service and diabetes mellitus may not be presumed to have incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from November 1976 to November 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal of May 2006 and July 2014 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156 (a). 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. Id. 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). Further, 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claims of service connection for TBI, to include a number of complaints associated by the Veteran, and for a right wrist injury, were denied in a May 2001 rating decision on the grounds that no in-service injury and no nexus to service were shown. The Veteran did not appeal these denials, and they became final. A reopened claim was filed in February 2005; the RO denied such in a May 2006 decision. The Veteran initiated an appeal in July 2006, which the RO accepted and began to process under the Decision Review Officer (DRO) process at the Veteran’s request. The RO attempted to rescind acceptance of the appeal in November 2007, but could not do so after the Veteran relied upon their action. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). The May 2001 decision is therefore the most recent final denial. Since May 2001, the Veteran has submitted, or VA has secured on his behalf, private and VA treatment records documenting current complaints of TBI residuals, to include headaches, a cyst on the brain, dizziness, falling down, depression, anxiety, and schizophrenia, and of right wrist/joint problems. These records are new in the sense that they were not of record at the time of the May 2001 decision, but are not material, as they fail to address the basis for the prior denials. Current disabilities were not at issue, the onset in service and a nexus to service were. These submissions are not sufficient to warrant reopening of the previously denied claims. With regard to the right wrist, however, the Veteran in May 2005 submitted copies of his service treatment records (STRs) dealing with a right wrist laceration. Such were previously of record, but it appears these particular records were not considered in 2001, as the RO at that time stated that STRS showed no injury of the wrist of any kind, and these records clearly document such. As the records were not previously considered, though already submitted, and bear directly on an unestablished fact with regard to the right wrist, service connection for that matter is reopened. The question of service connection on the merits is addressed in the remand section below. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases, to include diabetes mellitus, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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 Veteran 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 the claimant. Post-service medical records reveal that the Veteran received a diagnosis of diabetes mellitus in February 2000. The Veteran contends a link between diabetes mellitus and service; other than this bald assertion, he has provided no details or evidence in support of this contention. The Board has considered the potential applicability of presumptive and direct service connection for diabetes mellitus; no condition or circumstance is reflected in the evidence of record which raises a reasonable possibility of secondary service connection. For presumptive service connection in this matter, a compensable manifestation of diabetes mellitus would be required within one year of the Veteran’s November 1979 separation from service. Records do not show such, nor do subsequent records indicate that diabetes was present at that time. Diagnosis occurred in February 2000, incidental to treatment for nausea, vomiting, and no clinician refers to any long standing, undetected condition. Therefore, presumptive service connection is not warranted here. As to service connection on a direct basis, review of service treatment records reveals no diagnosis of, or treatment for, diabetes mellitus or any associated signs or symptoms. Current care providers have not addressed even a possible link to active service. While the Veteran has contended that service connection for diabetes mellitus is warranted, he has offered no evidence to support this contention. Here, the Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). The preponderance of evidence is against the Veteran’s claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Wrist The claim of service connection for a right wrist disability is reopened. A VA examination is required to determine if there is any current residual disability. Toes As is discussed above, in July 2006, the Veteran initiated an appeal of a May 2006 rating decision, stating he disagreed with the RO’s decision in its totality. The RO accepted this as a valid disagreement and began processing the appeal by asking the Veteran to elect a traditional or DRO appellate process. More than a year later, the RO abandoned the appeal by claiming the Veteran had failed to specify the issues in dispute. The Board finds the RO is bound by its initial determination that the Veteran’s July 2006 filing was a notice of disagreement (NOD) will all adverse decisions in the May 2006 rating decision. Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). At this time, there remain two issues from the May 2006 decision and July 2006 NOD which have not been addressed, service connection for status post fifth toe fracture and service connection for status first metatarsal osteotomy, left. When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Thus a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA skin and joint examinations. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the right wirst, and must opine as to whether any such are at least as likely as not (50 percent probability or greater) related to service, to include the in-service laceration documented in STRs. 2. Issue an SOC regarding the issues of service connection for status post fifth toe fracture and service connection for status first metatarsal osteotomy, left. Advise the Veteran of the procedural requirements to continue an appeal of each issue. If a substantive appeal is timely filed with regard to all or any of these matters, the perfected issue should be certified to the Board. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel