Citation Nr: 18155203 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-46 608 DATE: December 4, 2018 ORDER New and material evidence having not been presented, reopening of the claim for service connection for a back condition is denied. New and material evidence having not been presented, reopening of the claim for service connection for hypertension is denied. New and material evidence having not been presented, reopening of the claim for service connection for a head injury with residual headaches and dizziness is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for neuropathy is denied. Entitlement to service connection for a chronic pain disability is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and intermittent explosive disorder is denied. FINDINGS OF FACT 1. A February 1999 rating decision denied the claims of entitlement to service connection for hypertension and a back disability; the Veteran did not perfect an appeal with respect to those denials, and thus, the decisions are considered final. 2. A January 2009 rating decision denied the claims of entitlement to service connection for residuals of a head injury, to include headaches and dizziness; the Veteran did not appeal those denials, and thus, the decisions are considered final. 3. Evidence received subsequent to the February 1999 and January 2009 rating decisions includes evidence that is not cumulative or redundant of the evidence previously of record, but which does not relate to unestablished facts necessary to substantiate the claims for entitlement to service connection for hypertension, a back disability, or residuals of a head injury, to include headaches and dizziness. 4. The preponderance of the evidence is against finding that the Veteran’s current sleep apnea, neuropathy, chronic pain disability, or acquired psychiatric disorder began during active service, or are otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has not been presented to reopen the claim of entitlement to service connection for residuals of a head injury, to include headaches and dizziness. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 5. The criteria for service connection for neuropathy have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 6. The criteria for service connection for a chronic pain disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 7. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty from June 1995 to December 1997. The Board also acknowledges that the Veteran initiated an appeal with respect to a March 2017 rating decision, which denied entitlement to an increased rating for a right knee strain. However, that issue has not yet been certified to the Board. The Board’s review of the claims file reveals the AOJ may still be taking action on that issue. As such, the Board will not accept jurisdiction over this issue at this time, but that issue will be the subject of a subsequent Board decision, if otherwise in order. VA’s Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2018), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran was also afforded an opportunity for a hearing before a Decision Review Officer of the Regional Office (RO), or a Veterans Law Judge at the Board of Veteran’s Appeals, but declined. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). Where a veteran served for at least 90 days during a period of war and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Claims to Reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO initially denied service connection for hypertension and a back disability in a February 1999 rating decision. At that time, the RO determined there was no evidence indicating the Veteran’s hypertension incurred in service. The RO also found the evidence failed to show the Veteran’s hypertension manifest to a compensable degree within one year of his discharge from service. For these reasons, the RO determined neither a direct nor presumptive service connection could be established for this disability. In the same February 1999 rating decision, the RO also found the Veteran’s service treatment records revealed no evidence of a back disability therein. In addition, the RO found the evidence of record failed to indicate a possible relationship between the Veteran’s service-connected knee disabilities and his claimed back condition, and as such, the RO determined a service connection could neither be established on a direct nor secondary basis for the claimed back disability. The Veteran did not perfect an appeal with respect to these determinations. The Veteran’s claim for residuals of a head injury, to include headaches and dizziness was denied by the RO in a January 2009 decision. With respect to this disability, the RO determined the preponderance of the evidence failed to show the Veteran sustained a chronic head injury in service. The RO found that although the Veteran did report hitting the left side of his head in April 1996, after jumping from a window, his remaining records failed to show any ongoing treatment. On separation examination, the Veteran neither reported nor was diagnosed with any head abnormalities. For these reasons, the RO found the preponderance of the evidence failed to show the Veteran sustained a chronic head injury in service. The Veteran did not initiate an appeal as to that determination. The evidence of record in February 1999 and January 2009 consisted of the Veteran’s statements and STRs, as well as his outpatient treatment records from the Cleveland, Bay Pines, and Tampa VAMCs. The evidence received after the expiration of the appeal period includes additional statements from the Veteran, as well as additional outpatient treatment records from the Cleveland and Tampa VAMCs. However, with respect to his claims, the Board finds the Veteran has not submitted material evidence to reopen his previously denied claims. Though the Veteran has submitted new evidence since his February 1999 and January 2009 denials, the Board finds this evidence is redundant of the evidence previously submitted. In particular, though the Veteran has submitted additional lay statements and treatment records, this evidence does not establish his current hypertension was either incurred in service, or manifest to a compensable degree within one year of his discharge therefrom. In addition, the Veteran has not submitted any additional evidence to substantiate his claim for a back disability, because he has not submitted evidence to rebut the prior determination that his condition was neither incurred in military service or caused by his service-connected bilateral knee disabilities. Likewise, the Veteran has not submitted any additional lay or medical evidence to establish the incurrence of a chronic head injury in service. Although the Veteran has submitted new evidence, the Board finds this evidence is cumulative or redundant of the evidence previously submitted. Therefore, this evidence is not considered relevant or material to previously unestablished facts necessary to substantiate these claims, and as such, his claims cannot be reopened at this time. Service Connection Claims The Veteran generally asserts that service connection is warranted for sleep apnea, neuropathy, a chronic pain disability, and an acquired psychiatric disorder. A review of his VAMC and private treatment records does not indicate the Veteran has been clinically diagnosed with any of the above-noted disabilities. Further, the Board concludes that, even if the Veteran does have symptoms of the above-noted disabilities, which have not yet been formally diagnosed, the preponderance of the evidence is against finding that the disabilities began during active service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records fails to show he was ever treated for or diagnosed with sleep apnea, neuropathy, a chronic pain disability, or an acquired psychiatric disorder in service. Moreover, the Veteran has not indicated he experienced any in-service injuries, events, or diseases that may have caused the claimed disabilities. During his August 1997 separation examination, the Veteran denied trouble sleeping, psychiatric manifestations such as depression, nervousness, or excessive worry, joint pains, or nerve injuries. No sleep apnea, neuropathy, chronic pain disability, or acquired psychiatric disorder was noted by the examiner at that time. Further, following a comprehensive review of the file, the Board notes the Veteran did not provide any specific details as to how or why he felt these disabilities were consequentially related to his military service. While the Veteran is competent to report that he believes his claimed sleep apnea, neuropathy, chronic pain disability, and acquired psychiatric disorder should be service-connected, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. In this respect, the Board notes that the most probative evidence of record shows the Veteran was never treated for or diagnosed with the above-noted disabilities during his time in military service. Additionally, though the Veteran has received copious treatment at the Bay Pines, Tampa, and Cleveland VAMCs, there is no evidence indicating he has ever been formally diagnosed with the claimed disabilities. In sum, the Board finds the preponderance of the evidence weighs against findings that sleep apnea, neuropathy, a chronic pain disability, or an acquired psychiatric disorder were incurred during the Veteran’s period of active duty. For this reason, the Board must deny these claims. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel