Citation Nr: 18156607 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-13 767 DATE: December 11, 2018 ORDER New and material evidence not having been received, entitlement to service connection for a left ankle condition is denied. New and material evidence not having been received, entitlement to service connection for a back condition is denied. New and material evidence not having been received, entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. New and material evidence not having been received, entitlement to service connection for a lung disorder, to include asthma, is denied. Entitlement to service connection for cholecystitis is denied. Entitlement to service connection for Parkinson’s disease is denied. Entitlement to service connection for a left hand condition is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. In a September 1981 decision, the Board of Veterans’ Appeals (Board) denied entitlement to service connection for a left ankle disorder. The Veteran did not appeal that determination and it became final. 2. Evidence received since the September 1981 Board decision is not new, material, or likely to substantiate the Veteran’s claim of entitlement to service connection for a left ankle disorder. 3. In an August 2009 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) declined to reopen the Veteran’s claim of entitlement to service connection for a back condition, and the Veteran did not appeal that determination or submit additional evidence within one year of the rating decision. 4. Evidence received since the August 2009 rating decision is not new, material, or likely to substantiate the Veteran’s claim of entitlement to service connection for a back condition. 5. In a February 2009 rating decision, the RO declined to reopen the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran did not appeal that determination or submit additional evidence within one year of the rating decision. 6. Evidence received since the February 2009 rating decision is not new, material, or likely to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 7. In a May 1994 rating decision, VA declined to reopen the Veteran’s claim of entitlement to service connection for a lung disorder, to include asthma. 8. Evidence received since the May 1994 rating decision is not new, material, or likely to substantiate the Veteran’s claim. 9. A medical nexus has not been established between a current diagnosis of cholecystitis and an in-service incurrence. 10. A medical nexus has not been established between a current diagnosis of Parkinson’s disease and an in-service incurrence, and a current diagnosis did not manifest within one year of separation from service; and continuity of symptomology since separation from service has not been established. 11. A medical nexus has not been established between a current diagnosis of a left hand disorder and an in-service incurrence, and a current diagnosis did not manifest within one year of separation from service; and continuity of symptomology since separation from service has not been established. 12. A medical nexus has not been established between a current diagnosis of COPD and an in-service incurrence. CONCLUSIONS OF LAW 1. The September 1981 Board decision denying service connection for a left ankle condition is final. 38 U.S.C. § 4004(b) (West 1976); 38 C.F.R. § 19.104 (1981). 2. The criteria for reopening the Veteran’s previously denied claim for service connection for a left ankle condition have not been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). 3. The August 2009 rating decision denying service connection for a back condition is final. 38 U.S.C. § 7105(c) (West 2006); 38 C.F.R. § 3.104, 20.302, 20.1103 (2009). 4. The criteria for reopening the Veteran’s previously denied claim for service connection for a back condition have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The February 2009 rating decision denying service connection for an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C. § 7105(c) (West 2006); 38 C.F.R. § 3.104, 20.302, 20.1103 (2008). 6. The criteria for reopening the Veteran’s previously denied claim for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. The May 1994 decision denying service connection for lung disease, including asthma, is final. 38 U.S.C. § 4004(b) (West1976); 38 C.F.R. § 19.104 (1981). 8. The criteria for reopening the Veteran’s previously denied claim for service connection for a lung disorder, to include asthma, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 9. The criteria for entitlement to service connection for cholecystitis is denied. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 10. The criteria for entitlement to service connection for Parkinson’s disease is denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 11. The criteria for entitlement to service connection for a left hand condition is denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 12. The criteria for entitlement to service connection for COPD is denied. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 and January 1975. This matter comes to the Board on appeal from a February 2014 rating decision of the VA RO in Albuquerque, New Mexico. New and Material Evidence The Veteran is seeking to reopen multiple claims for service connection that were previously denied. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined 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. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left ankle condition. At issue is whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left ankle condition. Unfortunately, new and material evidence sufficient to reopen the Veteran’s claim has not been submitted. The RO originally denied the Veteran service connection for a left ankle condition in May 1980. The Veteran appealed, and, in a September 1981 decision, the Board affirmed the RO’s decision. The Veteran subsequently filed a claim to reopen the issue, and, in February 2014, the RO found that new and material evidence had not been received. The Veteran appealed. Prior to the September 1981 Board decision, the evidence of record included an August 1974 service treatment record indicating that the Veteran sought treatment for his left ankle, and he was diagnosed with and hospitalized for a sprained left ankle. The record is then silent until a September 1978 military examination in which the Veteran’s musculoskeletal system was evaluated as normal. Additionally, an April 1980 VA examination noted deformity and sclerosis of the left tarsonavicular. The Board denied service connection for a left ankle condition due to lack of continuity of symptoms. Since the September 1981 Board decision, additional evidence has been submitted into the record indicating that the Veteran has continued to provide competent reports of left ankle injury. Unfortunately, none of the additional evidence indicates or suggests that the Veteran manifested continuity of symptomology, a current diagnosis of arthritis within one year of separation from service, or a medical nexus between a current diagnosis and an in-service incurrence. Therefore, the additional evidence is not new or material and does not provide a reasonable possibility of sustaining the Veteran’s claim. Shade is a low standard, but it is a standard nonetheless. Therefore, the Veteran’s claim to reopen the Veteran’s previously denied claim for service connection for a left ankle condition is denied. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back condition. At issue is whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back condition. Unfortunately, new and material evidence sufficient to reopen the Veteran’s claim has not been received. The RO originally denied the Veteran service connection for a back condition in May 1980. The Veteran appealed, and, in a September 1981 decision, the Board affirmed the RO’s decision. The Veteran subsequently filed to reopen his claim for service connection, and, in August 2009, the RO declined to reopen the Veteran’s claim. The decision became final after the Veteran failed to file a notice of disagreement or additional evidence within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in February 2014, the RO found that new and material evidence had not been received. The Veteran appealed. Prior to the August 2009 rating decision, the evidence of record included service treatment records that were silent for reports of or treatment for a back condition. The record is then silent until a September 1978 military examination in which the Veteran’s musculoskeletal system was evaluated as normal. Later the Veteran submitted additional treatment records and statements, and this included private medical opinions indicating that the Veteran has a current back condition. The RO denied service connection for a back condition, because the evidence of record did not establish that the Veteran’s back condition was related to a period of service. Since the August 2009 rating decision, additional evidence has been received indicating that the Veteran has continued to manifest a current back problem. Unfortunately, none of the additional evidence indicates or suggests that the Veteran manifested continuity of symptomology, a current diagnosis of arthritis within one year of separation from service, or a medical nexus between a current diagnosis and an in-service incurrence. Therefore, the additional evidence is not new or material and does not provide a reasonable possibility of sustaining the Veteran’s claim. As previously noted, Shade is a low standard, but it is a standard nonetheless. Therefore, the Veteran’s claim to reopen the previously denied claim for service connection for a back condition is denied. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. At issue is whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. Unfortunately, new and material evidence sufficient to reopen the Veteran’s claim has not been received. The RO originally denied the Veteran service connection for a left ankle condition in May 1980. The Veteran appealed, and, in a February 1983 decision, the Board affirmed the RO’s decision. The Veteran subsequently filed a claim to reopen the issue, and, in July 1995, the RO denied service connection again. The Veteran appealed, and, in May 1999, the Board affirmed the RO’s decision. The Veteran subsequently filed a claim to reopen the issue, and, in February 2009, the RO denied service connection again. The Veteran subsequently filed a claim to reopen the issue, and, in February 2014, the RO found that new and material evidence to reopen a claim for service connection had not been received. The Veteran subsequently filed a claim to reopen the issue, and, April 2015, the RO found that new and material evidence to reopen a claim for service connection had been received and denied the Veteran’s claim on the merits. The Veteran appealed. Prior to the February 2009 rating decision, the evidence of record included evidence of multiple acquired psychiatric disorders to include schizophrenia, anxiety, and PTSD. Additionally, the record contained evidence of in-service incurrences to include being hospitalized for psychoses. Finally, the record contained evidence of psychiatric treatment after service as well as psychiatric medical opinions. Ultimately however, previous decisions found that the Veteran had not submitted sufficient evidence of a medical nexus or that the criteria for presumptive service connection had been met. Since the February 2009 rating decision, additional evidence has been received into the record indicating that the Veteran has continued to provide competent reports of an acquired psychiatric disorder and competent reports of in-service incurrences/stressors and psychiatric manifestations after service. Nevertheless, the additional evidence submitted does not include a positive medical opinion suggesting a nexus (or medical link) between an in-service incurrence or stressor and a current diagnosis. Additionally, any evidence suggestive of meeting the criteria for presumptive service connection is duplicative of evidence that was previously in the record in February 2009. Shade is a low standard, but it is a standard nonetheless. Therefore, the Veteran’s claim to reopen the Veteran’s previously denied claim for service connection for an acquired psychiatric disorder is denied. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma At issue is whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma. New and material evidence sufficient to reopen the Veteran’s claim has not been received. The RO originally denied the Veteran service connection for an asthma in May 1980. The Veteran appealed, and, in a September 1981 decision, the Board affirmed the RO’s decision. A May 1994 rating decision denied service connection for lung disease. The Veteran subsequently filed to reopen his claim for service connection, and, in February 2014, the RO declined to reopen the Veteran’s claim. The Veteran appealed. Prior to the May 1994 rating decision, the evidence of record included the Veteran’s service treatment records which were silent for reports of or treatment for asthma, a current diagnosis of asthma, and a medical examination which is not suggestive of a medical nexus between a current diagnosis and an in-service incurrence. Since the May 1994 rating decision, additional evidence has been received into the record indicating that the Veteran has continued to manifest breathing problems. Unfortunately, none of the additional evidence indicates or suggests a medical nexus between a current diagnosis and an in-service incurrence. Therefore, the additional evidence is not new or material and does not provide a reasonable possibility of sustaining the Veteran’s claim. As previously noted, Shade is a low standard, but it is a standard nonetheless. Therefore, the Veteran’s claim to reopen the Veteran’s previously denied claim for service connection for asthma is denied. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular 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 can also be established through application of statutory presumptions, including for chronic diseases like arthritis or organic diseases of the nervous system, when manifested to a compensable degree within one year of separation from service; or when continuity of symptomology since separation from service has been established. 38 C.F.R. §§ 3.307, 3.309. 5. Entitlement to service connection for cholecystitis. At issue is whether the Veteran is entitled to service connection for cholecystitis. The weight of the evidence indicates that the Veteran is not entitled to service connection for cholecystitis. The Veteran’s service treatment records are silent for reports of or treatment for a gallbladder condition. A military examination was conducted after the Veteran’s period of active service, in September 1978, for the purposes of joining the National Guard. The Veteran’s viscera were evaluated as normal, and, in a survey of medical history provided contemporaneously with the examination, the Veteran failed to report a history of gallbladder problems. Additionally, the Veteran underwent a VA examination in April 1980, and the Veteran was not diagnosed with a gallbladder condition. Finally, the Veteran’s treatment records indicate that the Veteran began to manifest acute cholecystitis decades after separation from service, and that he eventually underwent a cholecystectomy. The weight of the evidence indicates that the Veteran is not entitled to service connection for cholecystitis. The Veteran clearly manifested a diagnosis of cholecystitis that in turn led to a cholecystectomy. Nevertheless, the evidence of record does not establish that the Veteran manifested an in-service incurrence potentially related to cholecystitis, and the record does not contain a positive medical opinion suggesting a nexus between an in-service incurrence and a current diagnosis. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for cholecystitis. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for cholecystitis is denied. 6. Entitlement to service connection for Parkinson’s disease is denied. At issue is whether the Veteran is entitled to service connection for Parkinson’s disease. The weight of the evidence indicates that the Veteran is not entitled to service connection for Parkinson’s disease. The Veteran’s service treatment records are silent for reports of or treatment for signs or symptoms of Parkinson’s disease. A military examination was conducted after the Veteran’s period of active service, in September 1978, for the purposes of joining the National Guard. The Veteran’s neurological system was evaluated as normal, and, in a survey of medical history provided contemporaneously with the examination, the Veteran failed to report a history of neuritis. Additionally, the Veteran underwent a VA examination in April 1980, and the Veteran was evaluated as neurologically normal. Finally, the Veteran’s treatment records do not indicate that the Veteran began to manifest symptoms potentially related to the Veteran’s Parkinson’s disease (such as tremors and pain in the left hand) until decades after separation from service. The weight of the evidence indicates that the Veteran is not entitled to service connection for Parkinson’s disease. The Veteran has clearly manifested neurological symptoms. Nevertheless, the evidence of record does not contain a positive medical opinion suggesting a nexus between an in-service incurrence and a current diagnosis, and the Veteran did not manifest a diagnosis within one year of separation from service or continuity of symptomology since separation from service. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for Parkinson’s disease. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for Parkinson’s disease is denied. 7. Entitlement to service connection for a left hand condition is denied. At issue is whether the Veteran is entitled to service connection for a left hand condition. The weight of the evidence indicates that the Veteran is not entitled to service connection for a left hand condition. The Veteran’s service treatment records are silent for reports of or treatment for a left hand condition. A military examination was conducted after the Veteran’s period of active service, in September 1978, for the purposes of joining the National Guard. The Veteran’s upper extremities were evaluated as normal, and, in a survey of medical history provided contemporaneously with the examination, the Veteran did not report a history of arthritis. Additionally, the Veteran underwent a VA examination in April 1980, and the Veteran was not diagnosed with a left hand condition. Finally, the Veteran’s treatment records indicate that he began to manifest a left hand condition decades after separation from service. The weight of the evidence indicates that the Veteran is not entitled to service connection for a left hand condition. He has manifested symptoms associated with a left hand condition. Nevertheless, the evidence of record does not contain a positive medical opinion suggesting a nexus between an in-service incurrence and a current diagnosis, and the Veteran did not manifest a diagnosis of arthritis within one year of separation from service or continuity of symptomology since separation from service. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for a left hand condition. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a left hand condition is denied. 8. Entitlement to service connection for COPD is denied. At issue is whether the Veteran is entitled to service connection for COPD. The weight of the evidence indicates that the Veteran is not entitled to service connection for COPD. The Veteran’s service treatment records are silent for reports of or treatment for COPD. A military examination was conducted after the Veteran’s period of active service, in September 1978, for the purposes of joining the National Guard. The Veteran’s lungs were evaluated as normal, and, in a survey of medical history provided contemporaneously with the examination, the Veteran did not report a history of shortness of breath. Additionally, the Veteran underwent a VA examination in April 1980, and the Veteran was not diagnosed with COPD. Finally, the Veteran’s treatment records indicate that the Veteran began to manifest COPD decades after separation from service. The Board notes that the record contains substantial evidence of asthma; which like COPD is a respiratory condition. The Veteran’s claim for service connection for asthma is addressed earlier. The weight of the evidence indicates that the Veteran is not entitled to service connection for COPD. The Veteran has manifested a diagnosis of COPD. Nevertheless, the evidence of record does not establish that the Veteran manifested an in-service incurrence potentially related to COPD, and the record does not contain a positive medical opinion suggesting a nexus between an in-service incurrence and a current diagnosis. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for COPD. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. (CONTINUED ON NEXT PAGE) § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for COPD is denied. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel