Citation Nr: 18149585 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-34 301 DATE: November 9, 2018 ORDER Service connection for an acquired psychiatric disability, to include major depression and anxiety, is denied. Service connection for hypertension is denied. Service connection for a right elbow disability, claimed as joint pain, is denied. The petition to reopen a previously denied claim for lumbar muscle spasms, lumbar degenerative disc disease, and chronic low back pain is denied. The petition to reopen a previously denied claim for left shoulder tendinopathy, also claimed as left shoulder condition is denied. The petition to reopen a previously denied claim for left ankle sprain is denied. The petition to reopen a previously denied claim for left sided epicondylitis, also claimed as left elbow condition, is denied. The petition to reopen a previously denied claim for headaches, also claimed as temporomandibular joint disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disability, to include major depression and anxiety, had its onset in service or that it is due to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s hypertension is due to in-service event, injury, or disease; hypertension is not shown in service or during the initial post separation year. 3. The preponderance of the evidence is against finding that the Veteran’s right elbow condition, claimed as joint pain, is due to an in-service event, injury, or disease. 4. An unappealed March 2006 rating decision denied service connection for lumbar spine disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 5. An unappealed March 2006 rating decision denied service connection for left shoulder disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim 6. An unappealed March 2006 rating decision denied service connection for left ankle disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim 7. An unappealed January 2012 rating decision denied service connection for left elbow disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 8. An unappealed March 2006 rating decision denied service connection for TMJ; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include major depression and anxiety, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for right elbow condition, claimed as joint pain, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The March 2006 rating decision denying service connection for lumbar muscle spasms, lumbar degenerative disc disease, and chronic low back pain, is final and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103. 5. The March 2006 rating decision denying service connection for left shoulder tendinopathy, also claimed as left shoulder condition, is final and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103. 6. The March 2006 rating decision denying service connection for left ankle sprain is final and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103. 7. The January 2012 rating decision denying service connection for left sided epicondylitis, also claimed as left elbow condition, is final and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103. 8. The March 2006 rating decision denying service connection for headaches, also claimed as temporomandibular joint disorder, is final and the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to July 1974 in the United States Army. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA). The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on June 2018. However, the appeal has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For hypertension, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Entitlement to service connection for an acquired psychiatric disability, to include major depression and anxiety. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a right elbow condition, claimed as joint pain. The Veteran contends that his hypertension, right elbow pain, and depression/anxiety are the result of his military service. In his August 2015 Notice of Disagreement, he endorsed that his right elbow, headaches, and high blood pressure each warrant a 20 percent evaluation. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s an acquired mental disorder or right elbow disability that either began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board further concludes that the preponderance of the evidence weighs against finding that hypertension began in service or during the initial post separation year; or that hypertension is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.307, 3.309. Regarding psychiatric disorder, the record shows that psychiatric disability is first documented decades after service. Service treatment records (STRs) reflect no complaints, findings, or treatment for mental health problems. A May 2003 treatment note reflects major depression. A May 2004 treatment note reflects major depression in remission. An April 2006 VA examination reflects depressive disorder. By history, the symptoms were present for the past 8 years. Competent evidence showing onset of an acquired psychiatric disorder in service or that a currently diagnosed disorder is related to in-service disease, injury, or event has not been received. While the Veteran is competent to report his symptoms and treatment, he is not competent to provide a diagnosis in this case or provide an etiology opinion on his psychiatric disorder as this is a complex medical question and the cause is not susceptible to lay observation as it requires knowledge of principles in the field of psychiatry, including interpretation of the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, his opinion has no probative value. The Board assigns greater probative value to the STRs, which include the Veteran’s denial on July 1974 service separation examination of any history of depression, excessive worry, anxiety, or nervous trouble. This evidence reflects no abnormal psychiatric problems on service separation or history thereof. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Veteran has not submitted a favorable medical opinion to weigh in this matter. Regarding hypertension, the Board observes that, for VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term “hypertension” means that the diastolic blood pressure (the bottom number) is predominantly 90mm or greater, and “isolated systolic hypertension” means that the systolic blood pressure (the top number) is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The record shows no diagnosis for hypertension in service or within the initial post separation year. Notably, STRs reflect that the Veteran denied high blood pressure on July 1974 service separation examination. Hypertension is first documented decades after service and has not been linked to service by competent evidence. The Veteran is not competent to link his post service onset of hypertension to in-service disease or injury as he lacks the requisite medical training to formulate such an opinion. As such, his opinion has no probative value. The Board assigns greater probative value to the STRs, which include the Veteran’s denial on July 1974 service separation examination. Curry, supra. Regarding right elbow disability, the record shows that osteoarthritis was first documented decades after service. It was not present in service or within the one-year period after service discharge. STRs reflect that the Veteran denied arthritis and joint pain on July 1974 service separation examination. Although the Veteran reported painful or trick shoulder or elbow, clinical evaluation was normal. Although a 2017 private doctor wrote a letter noting that the Veteran’s had heavy lifting of equipment in service, such as artillery, and that he subsequently developed right elbow osteoarthritis, he does not describe any causal relationship supported by a complete rationale, nor does he indicate that the Veteran’s left elbow osteoarthritis developed within service or within the applicable presumptive period. Hence the evidence has limited probative value. The Board assigns greater probative value to the normal clinical findings on service separation examination coupled with the decades intervening service and the first documented abnormal pathology. The Veteran is not competent to provide a diagnosis of in-service onset or to relate any current disorder to service as this is not susceptible to lay observation and formulating a medical opinion concerning post service onset of osteoarthritis is a complex medical question that requires medical training and expertise. Jandreau at 1377. On balance the weight of the evidence is against the claims. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 4. Whether new and material evidence has been received to reopen claim for service connection for low back disorder. 5. Whether new and material evidence has been received to reopen claim for service connection for left shoulder disorder. 6. Whether new and material evidence has been received to reopen claim for service connection for a left ankle disorder. 7. Whether new and material evidence has been received to reopen claim for service connection for left elbow disorder. 8. Whether new and material evidence has been received to reopen claim for service connection for headaches, also claimed as temporomandibular joint disorder. The Veteran contends that his low back disorder, left shoulder disorder, left ankle disorder, left elbow disorder, and headaches disorder are the result of his military service. He submitted medical records indicating continued treatment for his claimed disabilities. A March 2017 private medical opinion by Dr. S noted that the Veteran complained of back and shoulder pain in-service and that he developed orthopedic disabilities after separation. The Veteran’s claims for service connection for degenerative disc disease, left shoulder tendinopathy, left ankle sprain, left elbow epicondylitis, and headaches disabilities were initially denied in a March 2006 rating decision. His claim for service connection for left sided epicondylitis was initially denied in a January 2012 rating decision. The Veteran was notified of the decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, these decisions became final. 38 C.F.R. §20.1103. His left shoulder and headache disorders were denied because they were not incurred in or aggravated by service; also, to the extent that there was in-service complaint or injury, no chronic disability or residuals are shown—it was acute and transitory. His low back and left ankle were denied because neither condition had its onset in service and neither condition was otherwise related to service. His left elbow was denied because the medical evidence did not link 2011 findings for epicondylitis to service, to include service separation exam history for painful or trick shoulder or elbow. Evidence submitted since the last prior final denial does not cure any prior evidentiary defect. In this regard, while the medical evidence continues to show disorders as claimed, the evidence does not tend to show that any of the currently diagnosed conditions had their onset in service or are otherwise related to service, to include any in-service medical findings or history. As none of the recent evidentiary submissions relates to a previously unestablished element, the evidence is not material. The Veteran’s lay report of disability related to service is not new. The Veteran submitted medical evidence in support of his claim for service left sided epicondylitis, also claimed as left elbow condition. The evidence included treatment for left elbow joint pain. Following a December 2011 VA examination, a diagnosis of left lateral epicondylitis was confirmed. The examiner noted that the Veteran’s separation examination was silent for any left elbow pain and he opined that the Veteran’s left elbow disability did not manifest to a compensable degree within one year of separation from military service. In the January 2012 rating decision, the RO found that the Veteran’s service treatment records were silent for any complaints of a left elbow pain and did not manifest with a left elbow disability within one year of separation from military service. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. However, it is not material, as it does not relate to the previously unestablished element of whether the Veteran’s left sided lateral epicondylitis is etiologically related to his military service. The Veteran submitted medical evidence in support of his claim for service connection for headaches, also claimed as temporomandibular joint disorder (TMJ). The evidence did not include any treatment for headaches, head pain, or TMJ. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. However, it is not material, as it does not relate to the previously unestablished element of whether the Veteran’s headaches are etiologically related to his military service. New and material evidence has not been received to reopen the claims. Accordingly, the petitions to reopen the claims for lumbar spine disability, left shoulder disability, left ankle disability, left elbow disability, and headaches is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel