Citation Nr: 18148774 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-44 467 DATE: November 8, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a right ankle disorder is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a speech impediment is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a seizure disorder is denied. Service connection for alcoholism is denied. REMANDED Service connection for a left shoulder disability is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from March 1992 to November 1993. 2. Final July 1994 and December 2012 rating decisions denied service connection for a right ankle disorder and a speech impediment, and declined to reopen previously denied claims for PTSD, an acquired psychiatric disorder, and a seizure disorder; evidence received since these final rating decisions does not raise a reasonable possibility of substantiating the claims. 3. The Veteran’s alcohol abuse was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right ankle disorder. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a speech impediment. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. New and material evidence has not been received to reopen the claim of entitlement to service connection for a seizure disorder. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. The criteria for service connection for alcoholism have not been met. 38 U.S.C §§ 105(a), 1110, 5107; 38 C.F.R. §§ 3.1(m), 3.301(d), 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Briefly, the Veteran’s representative attempted to withdraw his power of attorney in a December 2017 letter. However, he failed to submit a motion to withdraw, demonstrative of good cause, to VA following the certification of this appeal. Additionally, the December 2017 letter failed to provide a reason for the purported withdrawal or establish that it had been discussed with, or approved by, the Veteran at any time. As such, the Board finds that the attorney has not complied with the provisions of 38 C.F.R. § 20.608 and the attempted withdrawal is thus invalid. As such, he continues to be recognized as the Veteran’s power of attorney at this time. 38 C.F.R. § 20.608. New and Material Evidence First, the Veteran seeks to reopen claims for entitlement to service connection for a right ankle disorder, a speech impediment, PTSD, an acquired psychiatric disorder, and a seizure disorder. These issues will be addressed simultaneously as they require similar analyses. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, the right ankle claim was denied in a July 1994 rating decision. A December 2012 rating decision also denied the speech impediment claim, and declined to reopen the PTSD, psychiatric disorder, and seizure claims on the basis that no new and material evidence had been submitted since prior final denials. The Veteran did not appeal these decisions or submit documentation constituting new and material evidence within the one-year appeal periods. Accordingly, the July 1994 and December 2012 rating decisions are final. The Veteran subsequently requested to reopen these claims. The Board must now determine whether new and material evidence has been submitted since the final rating decisions sufficient for their reopening. With respect to the right ankle claim, evidence considered at the time of the final July 1994 rating decision included service treatment records (STRs) and a May 1994 general VA examination. As to the remaining claims, evidence considered at the time of the December 2012 final decision also included VA treatment records through June 2012 and multiple lay statements from the Veteran. Evidence added to the claims file since the final rating decisions includes: VA treatment records through June 2018, including multiple hospitalization reports; the Veteran’s Social Security Administration (SSA) file; and additional lay statements. This evidence is new as it was not of record at the time of the final July 1994 and December 2012 rating decisions. However, the new evidence does not raise a reasonable possibility of substantiating the claims. The final rating decisions denied the Veteran’s right ankle and speech disorder claims on the basis that the evidence did not demonstrate that the Veteran had been diagnosed with the claimed disabilities. The newly submitted evidence similarly fails to establish that the Veteran presented with current right ankle or speech disorders, including pain productive of functional impairment, during the pendency of this appeal. Further, the December 2012 rating decision denied the Veteran’s psychiatric and seizure claims upon the Regional Office’s (RO’s) determination that these conditions were not causally related to service. The new evidence, which includes extensive VA treatment records, is entirely silent for a link between these conditions and the Veteran’s military service. Thus, the new evidence is not material with respect to all five appeals. In reaching this conclusion, the Board has considered the Veteran’s contentions that the claimed disorders are related to service. However, he lacks the medical expertise to provide competent medical diagnoses or etiological opinions. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the absence of evidence that is both new and material, the appeals seeking to reopen the right ankle disorder, speech impediment, PTSD, acquired psychiatric disorder, and seizure disorder claims are denied. Service Connection The Veteran is additionally seeking service connection for alcoholism, to include as secondary to a psychiatric disorder. Generally, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, VA regulations provide that no compensation shall be paid if a disability is the result of alcohol abuse, defined as the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(a), (d); see also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). Furthermore, VA’s General Counsel has ruled that direct service connection for a disability which results from a claimant’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits where, as here, the claim was filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Thus, service connection for alcoholism as a primary disability must be denied as a matter of law. Further, service connection may be recognized for an alcohol or drug abuse disability where clear medical evidence shows that the disability is secondary to, or a symptom of, a service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). That is not the situation here, as the Veteran does not contend that his alcoholism is secondary to his service-connected knee disabilities or scar. Moreover, he is not currently service-connected for any psychiatric disabilities, such that alcoholism cannot be established on a secondary basis. As the Veteran has not presented a viable theory of entitlement, the claim for service connection for alcoholism is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the left shoulder and TDIU appeals. As to the left shoulder appeal, the Veteran was scheduled for multiple examinations between June and December 2015. The claims file indicates that these examinations were cancelled, seemingly for the Veteran’s failure to respond. However, he has since submitted multiple lay statements indicating his willingness to participate and requesting that a new examination be scheduled. As such, a remand is now warranted such that an examination may be scheduled. Determination of the above appeal will directly impact the TDIU appeal, as well, such that the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, remand of the left shoulder appeal necessitates remand of the TDIU claim, as well, such that the full scope of the Veteran’s service-connected disabilities may be considered in analyzing his entitlement. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate examination to determine the nature of his claimed left shoulder disability and its possible relationship to service. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to offer medical opinions as to: a. Whether the Veteran has demonstrated a left shoulder disability during the pendency of this appeal; b. Whether it is at least as likely as not that the left shoulder disability began in service, was caused by service, or is otherwise related to service; c. Whether it is at least as likely as not that the left shoulder disability was caused or aggravated by the Veteran’s service-connected right and left knee disabilities or the treatment thereof. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. If appropriate, refer the claim to VA’s Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel