Citation Nr: 18155693 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-45 346 DATE: December 6, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a left shoulder disability is denied. The petition to reopen the previously denied claim of entitlement to service connection for a low back disability is denied. The petition to reopen the previously denied claim for entitlement to service connection for a left knee disability is denied. Service connection for a traumatic brain injury (TBI) is denied. An effective date earlier than April 28, 2015 for a grant of service connection for depression is denied. REMANDED Entitlement to an evaluation in excess of 70 percent for depression is remanded. FINDINGS OF FACT 1. A June 1996 RO decision denied entitlement to service connection for a shoulder condition; VA did not receive an appeal or new and material evidence prior to expiration of the appeal period; the June 1996 decision became final. 2. An August 2011 RO decision denied entitlement to service connection for a dislocated left shoulder, a low back condition, and a left knee condition; VA did not receive an appeal or new and material evidence prior to expiration of the appeal period; the August 2011 decision became final. 3. Evidence received since the August 2011 decision includes evidence that is either cumulative or redundant and that does not relate to an unestablished fact necessary to reopen the previously denied claims for disability of the left shoulder, low back, and left knee. 4. The preponderance of the evidence is against finding that the Veteran has a traumatic brain injury (TBI) that began during active service, or is otherwise related to an in-service injury, event, or disease. 5. The RO granted entitlement to service connection for depression effective April 28, 2015, the date the Veteran filed a claim for this disability; the evidence shows that VA received no claim for depression prior to this date to include within a year after service separation. CONCLUSIONS OF LAW 1. The August 2011 rating decision denying the claim for service connection for left shoulder disability is final; and new and material evidence has not been received to reopen the previously denied claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The August 2011 rating decision denying the claim for service connection for low back disability is final; and new and material evidence has not been received to reopen the previously denied claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 3. The August 2011 rating decision denying the claim for service connection for left knee disability is final; and new and material evidence has not been received to reopen the previously denied claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 4. The criteria for entitlement to service connection for a traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for entitlement to an effective date earlier than April 28, 2015 for a grant of service connection for depression have not been met. 38 U.S.C. §§ 5110, 5121; 38 C.F.R. §§ 3.400, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1989 to May 1996. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 which 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 decision makers. 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 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). In 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). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).   1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for left shoulder disability. 2. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for low back disability. 3. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for left knee disability. Issues 1-3. The Veteran seeks to service connection for disability of the left shoulder, low back, and left knee. The Board concludes that an August 2011 rating decision is final; and that the preponderance of the evidence is against a finding that new and material evidence has been presented to reopen the previously denied claims for the left shoulder, low back, and left knee. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. The Veteran’s original claim for entitlement to service connection for a shoulder condition was denied in a June 1996 RO decision. VA did not receive and appeal, or new and material evidence prior to expiration of the appeal period. Hence, that decision became final. Later, in August 2011, the RO denied the Veteran’s petition to reopen her previously denied claim for entitlement to service connection for a left shoulder disability, and her new claims for service connection for low back and left knee disabilities. Again, VA did not receive and appeal, or new and material evidence prior to expiration of the appeal period. Hence, that decision became final. 38 U.S.C. §§ 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. The RO denied the appellant’s prior claims for a left shoulder disability because it found that the Veteran's shoulder condition existed prior to service and was not permanently aggravated by the Veteran’s active military service. The Veteran’s low back and left knee disabilities were denied because there was no evidence of any injury or chronic condition in service related to a current disability. Evidentiary submissions, lay and medical, received since August 2011 do not cure any prior evidentiary defect. VA and private medical records received since the August 2011 RO decision show current complaints of left shoulder, left knee, and low back pain. However, these records do not show a nexus between these current complaints and the Veteran's active military service. Thus, while this evidence is new, it is not material. The Veteran has also submitted copies of her service treatment records. However, these records were previously considered by VA adjudicators and, thus, are neither new nor material. Therefore, new and material evidence has not been received to reopen the previously denied claims. Accordingly, the petitions to reopen are denied. 4. Entitlement to service connection for TBI. The Veteran contends that she passed out while running in service, hitting her head—thus has TBI causing her medical problems in and since service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran has a TBI that began during active service, or is 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). Service treatment records (STRs) show no complaints, treatment, or finding for head injury. A December 1994 periodic examination reflects normal clinical evaluation of the head and neurologic system. A May 1996 service separation examination reflects normal clinical evaluation of the head and neurologic system, and the Veteran denied a history of head injury. The Veteran has identified two pieces of evidence in support of her claim that she suffered a traumatic brain injury in service. The first is a statement from the Veteran's ex-husband, J.M., who in September 2018 recounted witnessing the Veteran collapse during physical training in service and lose consciousness. He reported that after regaining consciousness, she was shaking uncontrollably and vomiting, and was taken to the hospital for treatment. Nothing like this incident is documented in the Veteran's treatment records. However, even if the Board assumes that it occurred, J.M. never testifies that he actually witnessed the Veteran suffer a head injury, either prior to her reported collapse or after falling. Accordingly, the Board finds that J.M.’s statement has limited probative value in establishing whether or not the Veteran sustained a head injury in service. In support of her belief that she did suffer a head trauma, the Veteran has also referred to a February 1995 service treatment record. This Screening Note of Acute Medical Care shows that the Veteran was treated for headaches, nausea, and vomiting, apparently after a visit home. The Veteran seizes on the presence of the word “head trauma” in this document as proof she suffered a serious head injury. Unfortunately, however, the Veteran appears to have misread that document in question. Significantly, before the notation regarding head trauma is the notation “neg.”, an abbreviation for “negative.” That is, the physician who examined the Veteran was actually recording that the Veteran had NOT suffered any head trauma that would explain her symptoms. Therefore, this evidence is not probative on whether the Veteran had in-service head injury or sustained TBI. The Veteran is competent to report that a head injury occurred in service. However, the Board finds that she is not credible in view of her denial of head injury on service separation examination coupled with the normal clinical evaluation at that time. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Additionally, even if the Board were to accept that the Veteran did pass out during a training exercise and hit her head, the STRs, which are the contemporaneous medical records, reflect no indication that the Veteran required treatment or had residuals thereof during service. Therefore, the Veteran’s statements have little probative value. In her claim for TBI, the Veteran also appears to be making an alternative argument that a 2007 cerebrovascular accident she suffered is related to service. In a September 2018 statement, she seems to speculate that there is a relationship between her passing out in training and her cerebrovascular accident (CVA) more than a decade later. However, she is not competent to link her CVA to service, including her alleged severe head injury or TBI as this is a complex medical question not susceptible to lay observation; and she has not presented a favorable medical opinion linking her CVA to her active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that STRs reflect normal heart and vascular system on service separation examination in 1996, and the Veteran denied blood pressure problems at that time. Hence, the Veteran's opinion of the etiology of her current disability is not competent evidence and is entitled to low probative weight. The Board acknowledges that the Veteran suffered a devastating injury at a relatively young age, one that has greatly impacted her quality of life. Understandably, she wants some explanation for why her cerebrovascular accident occurred. However, while her speculative attempts to relate her current disability to service are understandable, they are not alone sufficient basis to grant service connection. The Board assigns greater probative value to the Veteran’s STRs, which reflect normal clinical evaluation of the head and neurologic system at service separation and the Veteran’s denial of any history of head injury. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of neurologic impairment. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim in the absence of competent and credible evidence of in-service head injury with residual disability’s onset in service; or that the Veteran has any current neurological disability including residuals of CVA caused by or the result of in-service injury or disease, to include the alleged head injury. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 5. Entitlement to an effective date earlier than April 28, 2015 for the grant of service connection for depression. The Veteran has requested an earlier effective date for the grant of service connection for depression; however, it is unclear from the record why she believes she is entitled to an earlier effective date for these disabilities. It appears she may be arguing that she suffered from depression in service and therefore should be awarded compensation from when she first experienced symptoms. The Board concludes that the preponderance of the evidence is against the assignment of an effective date earlier than April 28, 2015 for the grant of service connection for depression as this is the later date when looking at the date the claim was received versus the date of when entitlement arose. 38 U.S.C. §§ 5110, 5121; 38 C.F.R. §§ 3.400, 3.1000. The effective date of a grant of service connection is governed by 38 U.S.C. § 5110, as implemented by 38 C.F.R. § 3.400. 38 U.S.C. § 5110 (a) states, “unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (b)(1) states that “the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefore is received within one year from such date of discharge or release.” Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The RO granted service connection for depression and assigned an effective date of April 28, 2015, the date of VA’s receipt of her claim for this condition. This is consistent with VA regulations, which as discussed above, provide that the effective date of a service connection claim will be the date a claim is received, unless entitlement to service connection arose after the claim was filed or the claim was filed within one year of separation from service. In this case, the Veteran did not submit a claim for depression within one year following her separation from service. Although it appears that the Veteran was diagnosed with and being treated for her service connected conditions at the time of the April 2015 claim, the applicable law compels that the effective date of an award of service connection is the date the claim is received even if entitlement arose at an earlier date. In this case, the date the Veteran’s claim was received by VA is later than the date entitlement arose and is thus the appropriate effective date for the grant of service connection. The Veteran has not alleged that she submitted an earlier claim for depression or another acquired psychiatric disability which was not properly adjudicated by the RO. The Board therefore can find no basis to award an earlier effective date for the Veteran’s depression. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 6. Entitlement to an evaluation in excess of 70 percent for depression. Veteran is also seeking a disability evaluation in excess of 70 percent for her service connected depression. In August 2017, after the appeal had been initiated, but before it had been transferred to the Board, the Veteran was afforded a new VA examination of her psychiatric disability. However, although this evidence is relevant to her claim, the RO did not readjudicate the matter. If the AOJ receives evidence after an appeal is initiated (including after certification has been completed), but before the appeal is transferred to the Board, the evidence must be referred to the appropriate rating or authorization activity for review and disposition. 38 C.F.R. § 19.37(a). If an SOC/SSOC was prepared before the receipt of additional evidence, a new SSOC must be furnished to the appellant and representative. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: Send the Veteran a supplemental statement of the case (SSOC) that addresses the issue of entitlement to a disability evaluation in excess of 70 percent for service connected depression. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. D. Anderson, Counsel