Citation Nr: 18153900 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-44 257 DATE: November 28, 2018 ORDER Whether new and material evidence has been received to reopen the claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Whether new and material evidence has been received to reopen the claim of service connection for traumatic brain injury is denied. Whether new and material evidence has been received to reopen the claim of service connection for a speech impediment, to include as secondary to traumatic brain injury, is denied. Whether new and material evidence has been received to reopen the claim of service connection for headaches, to include as secondary to traumatic brain injury, is denied. Whether new and material evidence has been received to reopen the claim of service connection for insomnia, to include as secondary to traumatic brain injury, is denied. FINDINGS OF FACT 1. By rating action dated in October 2011, the RO denied service connection for a psychiatric disorder, to include PTSD; the Veteran did not timely appeal the decision and new and material evidence was not received within the applicable appeal period. 2. Evidence received since the October 2011 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for a psychiatric disorder, to include PTSD, and does not raise a reasonable possibility of substantiating the claim. 3. By rating action dated in October 2011, the RO denied service connection for traumatic brain injury, and in December 2013, the RO determined that new and material evidence had not been received to reopen the previously denied claim; the Veteran did not timely appeal either decision and new and material evidence was not received within the applicable appeal periods. 4. Evidence received since the December 2013 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for traumatic brain injury and does not raise a reasonable possibility of substantiating the claim. 5. By rating action dated in December 2013, the RO denied service connection for a speech impediment; the Veteran did not appeal this decision and new and material evidence was not received within the applicable appeal period. 6. Evidence received since the December 2013 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for a speech impediment and does not raise a reasonable possibility of substantiating the claim. 7. By rating action dated in December 2013, the RO denied service connection for headaches; the Veteran did not appeal this decision and new and material evidence was not received within the applicable appeal period. 8. Evidence received since the December 2013 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for headaches and does not raise a reasonable possibility of substantiating the claim. 9. By rating action dated in December 2013, the RO denied service connection for insomnia; the Veteran did not appeal this decision and new and material evidence was not received within the applicable appeal period. 10. Evidence received since the December 2013 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for insomnia and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed October 2011 rating decision that denied service connection for a psychiatric disorder, to include PTSD, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence not having been received, the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The unappealed December 2013 rating decision that determined new and material evidence had not been received to reopen the claim of service connection for traumatic brain injury is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence not having been received, the claim of entitlement to service connection for traumatic brain injury is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The unappealed December 2013 rating decision that denied service connection for a speech impediment is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 6. New and material evidence not having been received, the claim of entitlement to service connection for a speech impediment, to include as secondary to traumatic brain injury, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The unappealed December 2013 rating decision that denied service connection for headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 8. New and material evidence not having been received, the claim of entitlement to service connection for headaches, to include as secondary to traumatic brain injury, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The unappealed December 2013 rating decision that denied service connection for insomnia is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 10. New and material evidence not having been received, the claim of entitlement to service connection for insomnia, to include as secondary to traumatic brain injury, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1972 to November 1975. He had an additional period of service from July 1980 to May 1982 that has been deemed as not honorable for VA purposes under Article 85 of the Uniform Code of Military Justice. As such, under 38 C.F.R. § 12(C)(4), (C), benefits for disability arising from this period of service are not payable. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, to include psychoses, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). Although a decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. “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 un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). 1. Whether new and material evidence has been received to reopen the claim of service connection for psychiatric disorder, to include PTSD. The Veteran asserts that he has developed a psychiatric disorder, to include PTSD, as a result of a personal assault that took place during his period of active service. He contends that during his first period of service, he was assaulted by two fellow service members in his barracks resulting in a severe blow to the head for which he was treated. By rating action dated in October 2011, the RO, in pertinent part, denied service connection for a psychiatric disorder, to include PTSD. The Veteran did not timely perfect an appeal of that decision and new and material evidence was not received within one year of issuance. Thus, the October 2011 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran filed a new claim for service connection, and by rating action dated in May 2016, the RO determined that new and material evidence had not been received to reopen the previously denied claim. The evidence of record at the time of the October 2011 rating decision had included the Veteran’s service treatment records that while showing he had been treated for a lacerated scalp after fighting with two Marines, had not shown that he had manifested any psychiatric disorder, to include PTSD, during his period of active service. VA outpatient treatment records dated from October 2004 to March 2011 had shown negative screenings for PTSD, and a negative diagnosis for PTSD. A September 2011 VA PTSD examination report had shown a diagnosis of alcohol dependence, without psychological dependence, in early partial remission. The Veteran did not meet the criteria for a diagnosis of PTSD. As the Veteran did not meet the criteria for a current disability, the RO denied the Veteran’s claim in October 2011. Subsequent to the October 2011 rating decision, the evidence of record has included additional VA outpatient treatment records that do not show a diagnosis of PTSD, nor any other psychiatric disorder that was attributed to active service. The Board finds that the additional evidence added to the record does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran has a current diagnosis of a psychiatric disorder, to include PTSD, that is the result of active service. Moreover, the additional evidence does not suggest that the Veteran had manifested a psychosis within one year of his separation from active service. As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. Therefore, the issue of service connection for a psychiatric disorder, to include PTSD may not be reopened, and the claim must be denied. 2. Whether new and material evidence has been received to reopen the claim of service connection for traumatic brain injury. The Veteran asserts that he has residuals of traumatic brain injury that are manifested as a result of a personal assault that took place during his period of active service. He contends that during his first period of service, he was assaulted by two fellow service members in his barracks resulting in a severe blow to the head for which he was treated. By rating action dated in October 2011, the RO, in pertinent part, denied service connection for residuals of traumatic brain injury. The Veteran did not timely appeal the decision and new and material evidence was not received within one year of issuance. Thus, the October 2011 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran filed a new claim for service connection in January 2013, and by rating action dated in December 2013, the RO determined that new and material evidence had not been received to reopen the previously denied claim. The Veteran did not timely appeal the decision and new and material evidence was not received within one year of issuance. Thus, the December 2013 decision became final. Id. The evidence of record at the time of the December 2013 rating decision had included the Veteran’s service treatment records showing he had been treated for a lacerated scalp after fighting with two Marines. The record dated August 9, 1973, shows that the Veteran was diagnosed with a one-inch laceration and treated with six nylon sutures. The treating professional noted no probable disability and released the Veteran to full duty. Follow-up on August 13, 1973, shows that the sutures were removed, and that the wound appeared to have healed well. There was no further mention of the head injury in the service treatment records, and the November 1975 separation report of medical examination showed no report of symptoms associated with traumatic brain injury. Similarly, the November 1979 report of medical examination conducted in anticipation of the Veteran’s second period of service is silent for any related symptoms or diagnosis. VA outpatient treatment records dated from November 2002 to March 2011 are silent for any treatment related to a history of traumatic brain injury. A progress note dated in June 2011 shows that there is mention of a head injury noting a history of head trauma consisting of a fracture of back of the skull. A VA examination report dated in September 2011 showed that although mild memory loss was listed as a symptom, the examiner opined that it was associated with psychosocial stressors such as financial strain, unsteady work and income, and substance abuse/dependence, rather than traumatic brain injury symptoms. A VA examination report dated in October 2011 showed that psychological testing revealed a likelihood of exaggeration of pathology, and that the history did not support the Veteran’s claim that the in-service assault resulted in memory loss. The Veteran’s symptoms were said to be more likely associated with chronic alcohol abuse/dependence. The examiner could not make a nexus between the claimed condition and active service. As the evidence did not show that the Veteran had residuals of traumatic brain injury related to active service, the RO denied the Veteran’s claim in October 2011. This finding was reiterated by the RO in December 2013 when it was determined that new and material evidence had not been received to reopen the previously denied claim. VA outpatient treatment records dated in March 2006 had revealed treatment for headache following an assault outside of a bar three days earlier. There had been no additional evidence showing residuals of a traumatic brain injury sustained in service. Subsequent to the December 2013 rating decision, the evidence of record has included additional VA outpatient treatment records dated through May 2016 that do not show a diagnosis of residuals of traumatic brain injury that may was attributed to active service. The Board finds that the additional evidence added to the record does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran has a current diagnosis of residuals of traumatic brain injury that is the result of active service. Additional evidence that consists of records of post-service treatment that do not indicate that a condition is service-connected is not new and material. See Cox v. Brown, 5 Vet. App. 95, 99 (1993). As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. Therefore, the issue of service connection for traumatic brain injury may not be reopened, and the claim must be denied. 3. Whether new and material evidence has been received to reopen the claim of service connection for a speech impediment. The Veteran asserts that he has developed a speech impediment as a result of traumatic brain injury sustained during his period of active service. He contends that during his first period of service, he was assaulted by two fellow service members in his barracks resulting in a severe blow to the head for which he was treated. It is noted that service connection for traumatic brain injury has not been established, so entitlement to service connection secondary to traumatic brain injury would not be appropriate. See 38 C.F.R. § 3.310(a), (b). By rating action dated in December 2013, the RO, in pertinent part, denied service connection for a speech impediment. The Veteran did not timely appeal the decision and new and material evidence was not received within one year of issuance. Thus, the December 2013 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran filed a new claim for service connection, and by rating action dated in May 2016, the RO determined that new and material evidence had not been received to reopen the previously denied claim. The evidence of record at the time of the December 2013 rating decision had included the Veteran’s service treatment records that while showing he had been treated for a lacerated scalp after fighting with two Marines, had not shown that he had manifested any speech impediment during his period of active service. Post-service VA outpatient treatment records were completely silent as to any findings related to a speech impediment. As the Veteran had not demonstrated a disability manifested by a speech impediment that was the result of active service, the RO denied the Veteran’s claim in December 2013. Following the December 2013 rating decision, the evidence of record has included additional VA outpatient treatment records that do not show a diagnosis of a speech impediment attributed to active service. The Board finds that the additional evidence added to the record does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran has a current diagnosis of a speech impediment that is the result of active service. As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. Therefore, the issue of service connection for a speech impediment, to include as secondary to traumatic brain injury, not be reopened, and the claim must be denied. 4. Whether new and material evidence has been received to reopen the claim of service connection for headaches. The Veteran asserts that he has developed headaches as a result of traumatic brain injury sustained during his period of active service. He contends that during his first period of service, he was assaulted by two fellow service members in his barracks resulting in a severe blow to the head for which he was treated. It is noted that service connection for traumatic brain injury has not been established, so entitlement to service connection secondary to traumatic brain injury would not be appropriate. See 38 C.F.R. § 3.310(a), (b). By rating action dated in December 2013, the RO, in pertinent part, denied service connection for headaches. The Veteran did not timely appeal the decision and new and material evidence was not received within one year of issuance. Thus, the December 2013 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran filed a new claim for service connection, and by rating action dated in May 2016, the RO determined that new and material evidence had not been received to reopen the previously denied claim. The evidence of record at the time of the December 2013 rating decision had included the Veteran’s service treatment records that while showing he had been treated for a lacerated scalp after fighting with two Marines, had not shown that he had manifested a headaches disability during his period of active service. Post-service VA outpatient treatment records showed that in July 2002, the Veteran was treated for a headache; and in March 2006, he was treated following an assault outside of a bar three days earlier. There was no indication that these were etiologically related to active service. As the Veteran had not demonstrated a disability manifested by headaches that was the result of active service, the RO denied the Veteran’s claim in December 2013. Following the December 2013 rating decision, the evidence of record has included additional VA outpatient treatment records that do not show a diagnosis of a disability manifested by headaches attributed to active service. The Board finds that the additional evidence added to the record does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran has a current diagnosis of headaches that is the result of active service. As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. Therefore, the issue of service connection for headaches, to include as secondary to traumatic brain injury, not be reopened, and the claim must be denied. 5. Whether new and material evidence has been received to reopen the claim of service connection for insomnia. The Veteran asserts that he has developed insomnia as a result of traumatic brain injury sustained during his period of active service. He contends that during his first period of service, he was assaulted by two fellow service members in his barracks resulting in a severe blow to the head for which he was treated. It is noted that service connection for traumatic brain injury has not been established, so entitlement to service connection secondary to traumatic brain injury would not be appropriate. See 38 C.F.R. § 3.310(a), (b). By rating action dated in December 2013, the RO, in pertinent part, denied service connection for insomnia. The Veteran did not timely appeal the decision and new and material evidence was not received within one year of issuance. Thus, the December 2013 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran filed a new claim for service connection, and by rating action dated in May 2016, the RO determined that new and material evidence had not been received to reopen the previously denied claim. The evidence of record at the time of the December 2013 rating decision had included the Veteran’s service treatment records that while showing he had been treated for a lacerated scalp after fighting with two Marines, had not shown that he had manifested insomnia during his period of active service. Post-service VA outpatient treatment records showed that the Veteran had reported sleep disturbances; and in February 2013, he was diagnosed with severe obstructive sleep apnea. There was no indication that this was etiologically related to active service. As the Veteran had not demonstrated a disability manifested by insomnia that was the result of active service, the RO denied the Veteran’s claim in December 2013. Following the December 2013 rating decision, the evidence of record has included additional VA outpatient treatment records that do not show a diagnosis of a disability manifested by insomnia attributed to active service. The Board finds that the additional evidence added to the record does not constitute new and material evidence. While it is new, as it was not previously of record when the prior decision was made, it does not establish that the Veteran has a current diagnosis of insomnia that is the result of active service. As such, the additional evidence is not material as it does not by itself, or when considered with previous evidence of record, relate to an un-established fact necessary to substantiate the claim. Therefore, the issue of service connection for insomnia, to include as secondary to traumatic brain injury, not be reopened, and the claim must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel