Citation Nr: 18151075 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-09 319 DATE: November 16, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a left shoulder disability. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right shoulder disability. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right hand disability. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is denied. FINDINGS OF FACT 1. Additional evidence received since the October 2006 rating decision is not new, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left shoulder disability. 2. Additional evidence received since the October 2006 rating decision is not new, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right shoulder disability. 3. Additional evidence received since the October 2006 rating decision is not new, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right hand disability. 4. The Veteran’s acquired psychiatric disorder did not have its onset in service, nor is it related to service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a left shoulder disability. 38 U.S.C. § 5108; (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right hand disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to September 2002, and from October 2004 to March 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. New and Material Evidence A determination on a claim by the AOJ of which the claimant is properly notified is final if an appeal is not perfected. See 38 C.F.R. § 20.1103 (2018). Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted “is a legal nullity.” Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right hand disability The Veteran’s claims of entitlement to service connection for a bilateral shoulder disability and a right hand disability were previously denied in an October 2006 rating decision, based on the lack of evidence that the pre-existing bursitis of the bilateral shoulders was permanently worsened by service, and the lack of a clinical diagnosis for the claimed hand disability. The Veteran was notified of that decision and of his appellate rights. He did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156(b). Accordingly, the October 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2011, the Veteran submitted a petition to reopen the aforementioned claims. A February 2012 rating decision confirmed the prior denial of the Veteran’s claims, citing negative evidence including negative etiological opinions contained in September 2011 and January 2012 VA examinations. Evidence of record in October 2006 consisted of service treatment records and VA medical records. Service treatment records reflect that the Veteran was noted to have bilateral bursitis at his August 2000 entrance report of medical examination. He was seen on several occasions during service for pain in the shoulders and was noted in June 2001 and again in February 2005 to have bilateral bursitis. The evidence received after the October 2006 rating decision includes a September 2011 VA examination of the Veteran’s right hand, which notes no current diagnosis; a September 2011 VA examination of the Veteran’s shoulders with a negative etiological opinion; and a January 2012 VA examination of the shoulders, which also contains a negative etiological opinion. Indeed, the September 2011 and January 2012 examiners both found that the Veteran’s pre-existing bursitis was clearly and unmistakably not aggravated by service. Both VA examinations are probative and well-supported by an adequate rationale. A review of the evidence submitted since that Veteran’s last final denial shows no evidence that can be considered both new and material as to warrant reopening the claims. The Board notes that for a previously and finally denied claim to be reopened, the pending evidence must meet both requirements of being new and material. 38 C.F.R. § 3.156(a). Here, while the newly acquired evidence of record, to include VA examinations, is new, as it was not a part of the record prior to the previous decision, that evidence cannot be considered material, as it does not substantiate a previously undetermined fact. The Veteran’s claim was previously denied in October 2006 based on the lack of finding of any permanent worsening of the Veteran’s bilateral shoulder bursitis as a result of service, and the lack of a clinical diagnosis of a right hand disability. Here, the Board finds that the Veteran has not submitted any evidence that could plausibly overcome such findings since that denial. In fact, the evidence associated since is negative evidence, supportive of the previous denials. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to the appellant is not new and material). Likewise, the Board finds that a review of the other lay evidence of record since the initial denial of service connection reveals the same tenor of evidence. Specifically, statements and correspondence from the Veteran only address generalities speaking to the Veteran’s disabilities; the newly submitted evidence does not consist of evidence to support service connection. The Board is cognizant that the threshold bar for new and material evidence is low. However, the competency and sufficiency of the required level of evidence cannot be so low as to make such a standard impotent. As no new evidence has been submitted that can specifically or plausibly substantiate the Veteran’s claims for service connection for a bilateral shoulder disability and a right hand disability, the Board finds that new and material evidence has not been submitted. Therefore, the claims cannot be reopened; the petition is denied. 38 C.F.R. § 3.156. Service Connection Service connection requires competent evidence showing: (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). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA will consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to a determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 4. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder, to include anxiety and depression. Initially, the Veteran’s claim was only for anxiety disorder. However, as the record also contains a diagnosis of depression, the Veteran’s claim has been expanded to include service connection for an acquired psychiatric disorder, to include anxiety and depression, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” Id. The Veteran’s DD Form 214 shows that his MOS was that of radar repairer. His duty station was in Oklahoma. The Veteran’s service treatment records are silent as to any complaints, treatment or diagnosis for any psychiatric disorder. In fact, a February 2005 medical examination shows that while he received treatment for a shoulder injury, he was mentally sound. The first record of treatment, complaint, or diagnosis of a psychiatric disorder is in July 2007, two years after the Veteran’s separation from service. During this initial mental health visit, the Veteran reported that experienced mood swings, nightmares and irritability. Pertinently, the Veteran reported developing these symptoms after he was shot in June of 2006. It was specifically noted that this incident was unrelated to the military, and that the Veteran had no previous psychiatric treatment. The Veteran’s diagnosis was depression. The next pertinent VA treatment note is in March 2009. The Veteran again reported no trauma in the military, and indicated he was feeling edgy and anxious most of the time. The diagnosis was anxiety, and the psychologist ruled out PTSD. The Veteran had follow-up care in April and May 2009, when he decided to terminate care. The Board finds that the claim must be denied. The only relevant service treatment records show that the Veteran denied any relevant psychiatric symptoms in February 2005. The earliest medical evidence of psychiatric symptoms is dated in July 2007, which is over two years after separation from active duty service. In fact, the Veteran himself reported during his initial treatment that he had no traumatic events in service, and that his symptoms began after he was shot in 2006, over a year after separation from service. The Board further finds that service connection is not warranted on the basis of continuity of symptomatology, as the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a), and the U.S. Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to the Veteran’s own contentions, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), to include testimony as to the presence of psychiatric symptoms, the ultimate issue of whether or not an acquired psychiatric disorder is due to service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, as discussed above, the competent evidence of record weighs against a finding that the Veteran’s psychiatric disorder is related to service. Not only is there no medical evidence of record in favor of the claim, there is no evidence of in-service treatment or of an in-service event. In fact, the Veteran himself has asserted that his symptoms did not begin in service, and began over a year after service, after a traumatic event which was also unrelated to service. Therefore, any claim that the Veteran’s psychiatric symptomatology had its onset in service is deemed not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran’s contentions to the effect that the claimed disability was caused by his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel