Citation Nr: 18149908 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-00 307 DATE: November 14, 2018 ORDER The request to reopen a claim of entitlement for service connection for hallux limitus degenerative joint disease (DJD) of the right great toe is denied. The request to reopen a claim of entitlement for service connection for congestive heart failure is denied. Service connection for a bilateral hip disorder is denied. Service connection for a bilateral shoulder disorder is denied. Service connection for a sleep disorder is denied. Service connection for hypertension is denied. Service connection for an acquired psychiatric disorder including depression is denied. FINDINGS OF FACT 1. In a December 2010 rating decision, the Regional Office (RO) denied service connection for hallux limitus DJD of the right great toe and also denied service connection for congestive heart failure; although notified of these denials in a December 2010 letter, the Veteran did not initiate an appeal, and no new and material evidence was received within a year of that decision. 2. No new evidence associated with the record since the December 2010 rating denials, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims of service connection for hallux limitus DJD of the right great toe and congestive heart failure, or raises a reasonable possibility of substantiating the claims. 3. The weight of the evidence is against a finding that the Veteran has had a bilateral shoulder disability at any time during the appeal period. 4. There is no evidence or argument that a bilateral hip condition had its onset during service or shortly thereafter; the only complaints of hip problems were documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran’s active service. 5. There is no evidence or argument that a sleep disorder had its onset during service or shortly thereafter; the only complaints of sleep problems were documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran’s active service. 6. There is no evidence or argument that hypertension had its onset during service or shortly thereafter; the only diagnosis of hypertension of record was documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran’s active service. 7. There is no evidence or argument that depression had its onset during service or shortly thereafter; the first evidence of any depression was documented many years after service, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran’s active service. CONCLUSIONS OF LAW 1. The December 2010 rating decision in which the RO denied service connection for hallux limitus DJD of the right great toe and congestive heart failure is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence to reopen the previously denied claim of service connection for hallux limitus DJD of the right great toe has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence to reopen the previously denied claim of service connection for congestive heart failure has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304. 5. The criteria for service connection for a bilateral shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304. 6. The criteria for service connection for a sleep disorder have not not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304. 7. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 8. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107; 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to October 1981. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2014 rating decision in which the Department of Veterans Affairs (VA) RO in North Little Rock, Arkansas, denied the Veteran’s petition to reopen claims of service connection for hallux limitus DJD of the right great toe and congestive heart failure. That decision also denied on the merits claims of service connection for a bilateral hip disorder, a bilateral shoulder disorder, a sleep disorder, hypertension, and depression. The Board notes that the Veteran was previously represented by private attorney J. Michael Woods (as reflected in a December 2014 VA Form 21-22a, Appointment of Individual as Claimant’s Representative). However, in August 2016, the attorney withdrew his representation with notice to the Veteran. As such, and because the Veteran has not appointed another representative, the Board recognizes the Veteran as proceeding pro se in this appeal. Requests to Reopen Under legal authority in effect at the time of the prior denials of the Veteran’s claims of service connection for hallux limitus DJD of the right great toe and congestive heart failure and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The Veteran’s initial claims of service connection for hallux limitus DJD of the right great toe and congestive heart failure were denied in a December 2010 rating decision by the RO. The pertinent evidence then of record were his DD Form 214, service treatment records (STRs), an October 2010 VA examination report, VA treatment records from August 2009 to September 2010, private treatment records, and his application for VA compensation. The RO denied the claims on the basis that there was no evidence to show the currently diagnosed disorders were linked to military service or that they had existed continuously since date of discharge from service to the present time. Although notified of the December 2010 denial in a letter dated that same month, the Veteran did not initiate an appeal. See 38 C.F.R. § 20.200. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial, and no additional service records warranting reconsideration of the claim have been received. See 38 C.F.R. § 3.156 (b), (c). Therefore, the RO’s December 2010 denials of the claims are final as to the evidence then of record and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In this case, the Veteran filed his requests to reopen his previously denied claims of service connection for hallux limitus DJD of the right great toe and congestive heart failure in September 2013. Regarding requests to reopen, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, “new” evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or “merely cumulative” of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-283 (1996). Here, the last final denial of the claim is the December 2010 rating decision. Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Pertinent evidence added to the claims file since the December 2010 rating decision includes additional and updated VA treatment records, and statements from the Veteran and his attorney, on his behalf. The newly received VA treatment records date from July 2008 to November 2015 and show complaints and treatment regarding the right foot and the heart. While some of these records are “new,” in that they were not previously before agency decision makers, they do not abrogate the deficiency noted in the prior December 2010 rating decision—namely, the lack of a nexus between the Veteran’s currently diagnosed right foot and heart disabilities and his active service—or otherwise provide a basis to further substantiate the claims. As such, the additional VA treatment records are not “material,” as they do not pertain to an unestablished fact or provide a reasonable possibility of granting the claims for service connection. Regarding the statements from the Veteran and his representative, on his behalf, they generally express the Veteran’s belief that he is entitled to service connection for hallux limitus DJD of the right great toe and congestive heart failure. However, as these assertions simply reiterate those previously of record, and therefore do not provide any new information, they are cumulative of evidence previously of record; and, thus—not “new.” Notably, statements simply reemphasizing the position previously considered in the prior final decision are not new or sufficient to reopen the claims. See Reid v. Derwinski, 2 Vet. App. 312 (1992). Even if “new,” however, such assertions provide no basis to reopen the claims. Although the Veteran is competent to assert matters within his personal knowledge (to include matters observed or experienced), and to offer comment on some limited medical issues (to particularly include with respect to conditions capable of lay observation), he is not shown to have the medical training and expertise to comment on more complex medical matters—such as the etiology of his hallux limitus DJD of the right great toe and congestive heart failure. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (lay person not competent to diagnose cancer). Therefore, where, as here, resolution of the claims turns upon a medical matter that cannot be established by lay evidence, unsupported lay statements, alone, even if “new”, cannot serve as a predicate to reopen previously disallowed claims. See Hickson v. West, 11 Vet. App. 374 (1998); Moray v. Brown, 5 Vet. App. 211, 214 (1993). Overall, the Board finds that the above-cited evidence is either duplicative or cumulative of the evidence previously of record, or, if new, does not provide a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that, even when considering the “low threshold” for determining whether evidence is new and material pursuant to Shade, supra, the criteria for reopening the claims of service connection for hallux limitus DJD of the right great toe and congestive heart failure are not met. Accordingly, the Board concludes that the criteria for reopening the claims for service connection for hallux limitus DJD of the right great toe and congestive heart failure have not been met, and the RO’s December 2010 denials of the claims remain final. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable here. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from 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). Generally, to establish service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic diseases, such as hypertension, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post-service (one year for hypertension), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no bright line rule prohibiting consideration of evidence dated prior to the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). 1. Bilateral Shoulder Disorder Considering the evidence of record in light of the above-noted legal authority, the Board finds that service connection for claimed bilateral shoulder disorder is not warranted. The Veteran filed his claim for service connection for a bilateral shoulder condition in September 2013. He offered no argument or evidence regarding his theory of entitlement to service connection for the claimed disability. Additionally, he provided no further information regarding the nature of the claimed disability, to include any description of associated symptomatology. Significantly, a review of the post-service treatment records fails to reveal any diagnosis of a bilateral shoulder disability, or treatment for symptoms potentially indicative of bilateral shoulder disability, during the pendency of the claim or any time approximate thereto. The Board notes that a February 2010 VA treatment record reflects the Veteran’s report of a shoulder injury during service, though the report did not specify which shoulder was hurt. However, the STRs are silent for any complaints, findings or diagnoses related to the shoulders. Nonetheless, the Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See Degmetich, supra. Here, probative evidence establishing that the Veteran has, or at any time period pertinent to the current claim has had, a bilateral shoulder disability is lacking. Further, other than applying for service connection for a bilateral shoulder disability, the Veteran has proffered no lay evidence of disability, to include identifying any shoulder symptomatology from which he suffers. Thus, there is simply no competent, probative evidence of a bilateral shoulder disability upon which to predicate an award of service connection. The Board is aware of the recent decision of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018), in which the Federal Circuit held pain alone, without an accompanying diagnosis or identifiable condition, can constitute a “disability”, because pain in the absence of a presently diagnosed condition can cause functional impairment. In this case, however, there is no allegation or evidence of pain or functional impairment of the shoulders. For this reason, and those stated above, the current disability requirement has not been met with regard to this claim. For all the foregoing reasons, the Board finds that the claim for service connection for a bilateral shoulder disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports a fundamental element of the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Bilateral Hip Disorder, Sleep Disorder, Hypertension, and Depression Considering the evidence of record in light of the above-noted legal authority, the Board finds that service connection for claimed bilateral hip disorder, sleep disorder, hypertension, and depression is not warranted. The Veteran filed his claims of service connection for the identified disabilities in September 2013. He offered no argument or evidence regarding his theory of entitlement to service connection for any of the claimed disabilities. Notably, post-service treatment records do not show a bilateral hip disability, and a December 2013 VA X-ray revealed normal bilateral hips. However, the Veteran first complained of hip pain in an April 2013 VA treatment record. Post-service treatment records show current diagnoses of obstructive sleep apnea (OSA), hypertension, and depression. The Veteran first complained of sleep problems in a May 2012 VA treatment record, and sleep apnea was first diagnosed in a July 2014 VA treatment record. The Veteran first complained of depression and was first diagnosed with depression in a May 2012 VA treatment record. The first notation of hypertension was in a May 1996 private treatment record from Chicot Memorial Hospital. STRs are silent for any complaints, findings or diagnoses related to the claimed disabilities. In fact, in an October 1981 service separation report of medical history, the Veteran denied experiencing any swollen or painful joints, bone, joint, or other deformity, frequent trouble sleeping, high or low blood pressure, or depression or excessive worry. Also, in an October 1981 service separation examination report, the Veteran was evaluated as clinically normal as to the musculoskeletal, throat, vascular, and psychiatric systems, and he had a blood pressure reading of 104/78. That report also noted no defects or diagnoses. Significantly, however, each of these service connection claims must fail in the absence of any evidence or argument whatsoever linking any currently claimed in-service disability to an in-service injury, disease, or event, or any evidence establishing continuity of symptomatology. In this appeal, the Veteran has advanced no specific theory of entitlement or argument as why service connection is warranted for any of these claimed disabilities. There is no evidence or argument that any claimed disability had its onset during service or shortly thereafter—for example, within the one-year presumptive period for hypertension. The Board finds it noteworthy that, the Veteran filed his claims of service connection in September 2013—nearly 31 years after service—and there is no allegation of, or evidence documenting, any complaints pertaining to any of the claimed disabilities earlier than May 1996—more than 14 years after service. Notably, the fact that the service record does not document any such problems for many years after service is a valid factor for consideration. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, moreover, there is no competent evidence or opinion relating any post-service diagnosed OSA, hypertension, depression or hip pain to any event, injury or disease in service, and, in this case, the Veteran cannot establish a nexus to service for any of the claimed disabilities based on lay assertions, alone. The Veteran, as a layperson, is competent to attest to matters within his own personal knowledge, such as those observed or experienced (see, e.g., Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005)), and may opine on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the etiology of the claimed disabilities at issue is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau, supra. Instead, the matter of the medical etiology of the claimed disabilities here at issue is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is simply not shown to have such special knowledge, training, and experience, any such assertions in this regard would not be competent, and hence, not probative. Furthermore, on these facts, VA is not required to arrange for VA examination or to otherwise obtain a medical opinion on any of these claims. Generally, VA has a duty to 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. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board points out that the Veteran has merely filed a claim of service connection and has offered no argument or evidence indicated why service connection is warranted. These acts, alone, are not sufficient to trigger the duty to obtain an examination or to otherwise obtain any etiology opinion. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378. 1382 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The Board reiterates that, with respect to these claims, the Veteran has not articulated a specific theory of entitlement or advanced any argument as why service connection for the claimed disabilities is warranted. However, to the extent that the act of filing an application for service connection, alone, is tantamount to a generalized statement suggesting a nexus between each claimed disability and service, such does not meet the requirements for obtaining an examination or medical opinion, as espoused in Waters. For all the foregoing reasons, the Board finds that the claims for service connection for a bilateral hip disability, a sleep disorder, hypertension, and depression must each be denied. In reaching the conclusion to deny these claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, and probative evidence supports the required elements of any of these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel