Citation Nr: 18153402 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-20 965 DATE: November 27, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a traumatic brain injury (TBI), and the request to reopen is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability, and the request to reopen is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, depression, anxiety, and anger management, and to include as secondary to a TBI, and the request to reopen is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for glaucoma, and the request to reopen is denied. Entitlement to service connection for a right brain aneurysm, to include as secondary to a TBI, is denied. FINDINGS OF FACT 1. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a TBI. 2. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, depression, anxiety, and anger management, and to include as secondary to a TBI. 4. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for glaucoma. 5. The preponderance of the evidence of record is against finding that the appellant has, or has had at any time during the appeal, a current diagnosis of a right brain aneurysm. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a TBI. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, depression, anxiety, and anger management, and to include as secondary to a TBI. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 20.1100. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for glaucoma. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 5. The criteria for service connection for a right brain aneurysm, to include as secondary to a TBI, are not met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served an initial period of active duty for training with the United States Marine Corps Reserve from May 27, 1971, through July 9, 1971. This matter comes before the Board on appeal from November 2010, August 2011, and July 2012 Regional Office (RO) rating decisions. Service Connection Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In the case at hand, the most recent final denial of the TBI claim was in an April 2008 rating decision; the most recent final denial of the low back disability claim was in a September 2006 rating decision; and the most recent final denial of the glaucoma disability was in a June 2005 rating decision. Unless the Chairman of the Board orders reconsideration or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see 38 U.S.C. §§ 511(a), 7103(a), 7104(a). In the case at hand, the most recent final denial of the PTSD claim was in a February 2010 Board decision. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. It was further noted that reopening a claim only to deny it without providing assistance would be a hollow, technical decision and that there was no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty. Id. at 123-24. A final denial on one theory is a final denial on all theories. Thus, a new theory in support of a claim for a particular benefit is not equivalent to a separate claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must consider the new and material evidence question independently from the RO’s determination, as it goes to the Board’s jurisdiction to reach the underlying service connection claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, even though the RO reopened the appellant’s TBI claim in its August 2011 rating decision, the Board must consider the new and material evidence question independently before it may adjudicate that claim on the merits. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, an appellant must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, 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 for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21-24); 38 C.F.R. § 3.6. Service connection may thus be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C. §§ 101, 106, 1110, 1131. The advantage of certain evidentiary presumptions that assist claimants in establishing service connection for a disability do not extend to those who claim service connection based only on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. at 470-71; see also Smith v. Shinseki, 24 Vet. App. 40, 48 Note 7. Therefore, the presumptions of sound condition at entrance (38 U.S.C. §§ 1111, 1132), of aggravation where evidence shows an increase in severity of a pre-existing disease (38 C.F.R. § 3.306), and service incurrence for certain chronic diseases that manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service (38 C.F.R. §§ 3.307, 3.309) are not available with respect to periods of active duty for training or inactive duty training. New and material evidence has not been received to reopen the claim of entitlement to service connection for a TBI, and the request to reopen is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability, and the request to reopen is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, depression, anxiety, and anger management, and to include as secondary to a TBI, and the request to reopen is denied. Service personnel records reflect that the appellant’s date of induction into service was April 8, 1971. The appellant claims that the disabilities at issue arose as a result of a motor vehicle accident that occurred on April 10, 1971, two days following his induction into service. As such, he contends that he was on active duty at the time of the accident and that these disabilities are therefore connected to service. As noted above, the most recent final denial of the low back disability claim was made in a September 2006 rating decision; the most recent final denial of the TBI claim was made in an April 2008 rating decision; and the most recent final denial of the acquired psychiatric disability claim was made in a February 2010 Board decision which was upheld by the United States Court of Appeals for Veterans Claims (Court). As of the time of each of these decisions, service personnel records reflect that the appellant enlisted in the United States Marine Corps Reserve on April 8, 1971. They contain Original Orders dated May 26, 1971, with the subject “Assignment to Initial Active Duty for Training.” The appellant’s DD Form 214 reflects that he entered active duty on May 27, 1971, and separated from active duty on July 9, 1971, with a net active service period of one month and 13 days. In the February 2010 decision, the Board found that from April 8 to May 26, 1971, the appellant was on inactive reserve status and had not yet begun active duty for training. In the September 2011 Memorandum Decision, the Court found that the Board correctly concluded that because the motor vehicle accident took place before the appellant’s active duty began, it may not be considered when establishing service connection for PTSD. The appellant has consistently related that his automobile accident occurred on April 10, 1971. He had not had the accident at the time of the April 1, 1971, induction examination, and a May 10, 1971, report from a skull x-ray, PA and lateral views, notes that the appellant had been in a car accident on April 10. The appellant has consistently reported that he had been hospitalized for 50 days between the accident and his initial active duty for training. In his initial April 1973 claim, the appellant reported that his treatment for injuries incurred in this accident occurred entirely at Baptist Memorial Hospital in San Antonio, Texas, in April 1971. Attempts to obtain these records were unsuccessful, but a January 1973 record from that hospital does note that “[t]his is the second Baptist Memorial Hospital admission of this 19 year old boy who sustained facial injuries in an automobile accident in which he went through the windshield about two years ago.” Beginning in March 1998, the appellant has submitted statements suggesting that he received treatment following the accident in other locations. Specifically, he has identified receiving treatment at base hospitals in San Antonio; in Houston, Texas; at “Fort Simms” in Texas; and/or at Camp Pendleton in San Diego, California, as well as in VA Hospitals in San Diego, Houston, and San Antonio. Attempts to obtain such records were undertaken in earlier adjudications of these claims and have been unsuccessful. In the time since the most recent final rating decisions addressing the low back and TBI disability claims, but not the February 2010 Board decision that addressed the acquired psychiatric disability claim, new evidence has been added to the record. Specifically, an October 2009 consultative examination report reflects that the appellant reported that he “was injured approximately 38 years ago in a rollover accident. He was in the Marine Corps at the time and in a Jeep while on the grounds of Camp Pendleton during boot camp when the Jeep he was in rolled over.” It was also noted that the appellant “believes that he stayed approximately 20 days at Camp Pendleton and approximately 30 days at Fort Houston ‘because I was dying’ secondary ‘from my head injuries.’” This is the first time in the record that the appellant described having been in a jeep rollover at Camp Pendleton. A November 2009 psychological assessment from four days later notes that the appellant “says that he was in a jeep that rolled over while in training and preparing to go to Vietnam.” The Board finds that this evidence, while new does not form a basis for reopening the TBI and low back claims. As noted above, for the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the October 2009 statement is inherently false or untrue and therefore does not justify reopening the claim. Specifically, a record of service that is contained in his service personnel records lists his service as being with the 4th Recon Battalion in San Antonio, Texas, from April 8, 1971, through May 26, 1971. The appellant wrote on his April 1, 1971, entrance examination report that he was born in San Antonio, Texas, and that he was currently living with his father in San Antonio. On his April 1973 claim, he wrote that he had only received treatment for his injuries at a private hospital in San Antonio, and that hospital itself, in a 1973 record, has verified that it had treated the appellant for those injuries approximately two years earlier. The appellant specifically noted that he was in San Antonio at the time of the accident in the account of the accident that he made to the service department in an official attempt to change the status of his service to active duty service. The appellant was not transferred to Camp Pendleton in San Diego until May 27, 1971, one month and 17 days following his accident. The appellant’s most detailed account of his accident specifically notes that his father reported the accident to the appellant’s commander and his commander then transferred the appellant to Fort Sam Houston. Given the above, the Board finds it inherently incredible that the accident would, in fact, have occurred at Camp Pendleton. With respect to the more vague statement that the appellant made during the November 2009 psychological assessment, the Board finds that the appellant’s own prior statements, made over the course of decades, reflect that he was off duty at the time of the accident. If the Board were to reopen the TBI and low back disability claims, the duty to assist would not be triggered, and a medical opinion would not be sought. The concurring opinion in the Shade decision specifically pointed out that if the evidence supporting the claim is insufficient to trigger the duty to assist when the old and new evidence is considered together, then the new and material standard has not been met and the claim should not be reopened. Shade v. Shinseki, 24 Vet. App. 110, 123 (2010). It was further noted that reopening a claim only to deny it without providing assistance would be a hollow, technical decision and that there was no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty. Id. at 123-24. Therefore, the Board finds that the November 2009 record does not provide a sufficient basis to reopen the claims. Following the final denials of the TBI, low back disability, and acquired psychiatric disability claims, an October 2010 statement from the appellant’s former wife was added to the claims file. This statement does not help to demonstrate that the appellant’s disabilities were incurred during or aggravated by his period of active duty for training. She noted that “a sickbay Dr told [the appellant] he would get him discharged as he never should have been sent to Boot Camp which aggravated & exacerbated the TBI.” The appellant’s former spouse did not personally hear the doctor tell the appellant that his TBI was aggravated and exacerbated by boot camp. In fact, the appellant’s former spouse stated that she has known the appellant since 1975, which is four years following his separation from service. Thus, her statements are based on information obtained from the appellant, and such information is cumulative of information previously considered. Therefore, the October 2010 statement is not new and material evidence to reopen this claim. To the extent that the appellant contends that any of these disabilities existed prior to service and was aggravated by service, the Board notes that no new and material evidence has been submitted to reopen any of the four new and material evidence claims (TBI, low back disability, glaucoma, and PTSD) claims based on this theory of entitlement. No evidence pertaining to aggravation has been submitted for the low back disability, glaucoma, or PTSD claims, while a November 2016 VA examiner expressly concluded that it is less likely than not that the appellant’s TBI was aggravated by service. To the extent that the appellant has claimed entitlement to service connection for an acquired psychiatric disability as secondary to his TBI, the fact that service connection has not been granted for a TBI means that service connection for disabilities as secondary to the TBI must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the above, new and material evidence has not been received to reopen the claims of entitlement to service connection for a TBI, a low back disability, and an acquired psychiatric disability, and the requests to reopen are denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for glaucoma, and the request to reopen is denied. The claim of entitlement to service connection for glaucoma was originally denied in a June 2005 rating decision based on a determination that there was no evidence showing that this disability was incurred in or aggravated by service. At the time of this decision, there was a December 2004 VA medical record of record that indicated the appellant may have glaucoma. However, no connection had been made between the appellant’s glaucoma and service, and the appellant himself presented no theories for why service connection is warranted. To the extent that the appellant contends that his glaucoma is etiologically related to his automobile accident, he has provided no evidence, new or otherwise, to substantiate this claim. The record reflects that the appellant was diagnosed with glaucoma in 2009, while suspicions that he may have glaucoma do not predate the 2000s. No evidence that has been submitted since the June 2005 rating decision suggests an in-service onset of glaucoma or a link between glaucoma and service. Therefore, the Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for glaucoma, and the request to reopen must be denied. Entitlement to service connection for a right brain aneurysm, to include as secondary to a TBI, is denied. The appellant’s claim of entitlement to service connection for a right brain aneurysm, to include as secondary to a TBI, must be denied based on the absence of a diagnosis of a right brain aneurysm. A November 2016 VA examination report notes review of the record and interview and examination of the appellant. Based on the above, the examiner determined that “[t]here is no medical evidence for a brain aneurysm.” The examiner expressly noted the following: Extensive search of VBMS [the appellant’s electronic claims file] and current VA treatment records was performed. There is no medical evidence for a brain aneurysm. This includes review of CT scans from Oct 2008, August 2012 and MRI Brain Apr 2009, Oct 2012 which are negative for any hemorrhage with no mention of large vessel abnormality to suggest aneurysm. i.e. there is NO aneurysm present. On MRIs, there is mention of a small T2 signal abnormality at the margin of the left lateral ventricle, stable between 2009 and 2012. This is a non-specific finding [that] “may reflect prominent perivascular space.” This does not represent an aneurysm. The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination of the appellant. It also includes a detailed discussion of the facts of the appellant’s case and applies pertinent medical principles. The only remaining contrary opinion comes from the appellant himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim, specifically the diagnosis of a right brain aneurysm, are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Additionally, as service connection is not in effect for TBI, the threshold requirement for substantiating a claim for secondary service connection has not been met. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel