Citation Nr: 18160921 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-10 841 DATE: December 28, 2018 ORDER The claim of entitlement to service connection for a respiratory disorder is reopened. The claim of entitlement to service connection for a psychiatric disorder, to include schizophrenia and posttraumatic stress disorder (PTSD), is not reopened. The claim of entitlement to service connection for a lumbar spine disorder is not reopened. The claim of entitlement to service connection for a stomach disorder is not reopened. The claim of entitlement to service connection for diabetes mellitus is not reopened. The claim of entitlement to service connection for Parkinson’s disease is not reopened. The claim of entitlement to service connection for Alzheimer's disease is not reopened. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. A November 2008 rating decision denied entitlement to service connection for a respiratory disorder. The Veteran did not submit a timely appeal, and did not submit new and material evidence within one year. The November 2008 decision is final. 2. The evidence associated with the file after the November 2008 rating decision relates to an unsubstantiated fact necessary to establish the claim of entitlement to service-connection for a respiratory disorder. 3. An October 2013 rating decision denied entitlement to service connection for schizophrenia and PTSD. The Veteran did not appeal, and did not submit new and material evidence within one year. The October 2013 decision is final. 4. The evidence associated with the file after the October 2013 rating decision does not relate to an unsubstantiated fact necessary to establish the claim of entitlement to service connection for a psychiatric disorder. 5. An October 2013 rating decision denied entitlement to service connection for lumbosacral strain. The Veteran did not appeal, and did not submit new and material evidence within one year. The October 2013 decision is final. 6. The evidence associated with the file after the October 2013 rating decision does not relate to an unsubstantiated fact necessary to establish the claim of entitlement to service connection for a lumbar spine disorder. 7. An October 2013 rating decision denied entitlement to service connection for hypertrophic gastritis. The Veteran did not appeal, and did not submit new and material evidence within one year. The October 2013 decision is final. 8. The evidence associated with the file after the October 2013 rating decision does not relate to an unsubstantiated fact necessary to establish the claim of entitlement to service-connection for hypertrophic gastritis. 9. An October 2013 rating decision denied entitlement to service connection for diabetes mellitus. The Veteran did appeal, and did not submit new and material evidence within one year. The October 2013 decision is final. 10. The evidence associated with the file after the October 2013 rating decision does not relate to an unsubstantiated fact necessary to establish the claim of entitlement to service-connection for diabetes mellitus. 11. An October 2013 rating decision denied entitlement to service connection for Parkinson’s disease. The Veteran did appeal, and did not submit new and material evidence within one year. The October 2013 decision is final. 12. The evidence associated with the file after the October 2013 rating decision does not relate to an unsubstantiated fact necessary to establish the claim of entitlement to service-connection for a Parkinson’s disease. 13. An October 2013 rating decision denied entitlement to service connection for Alzheimer’s disease. The Veteran did appeal, and did not submit new and material evidence within one year. The October 2013 decision is final. 14. The evidence associated with the file after the October 2013 rating decision does not relate to an unsubstantiated fact necessary to establish the claim of entitlement to service-connection for Alzheimer’s disease. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a respiratory disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for a lower back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for hypertrophic gastritis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 6. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for Parkinson’s disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for Alzheimer’s disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served under honorable conditions in the U.S. Army from December 1971 until March 1973, and under conditions other than honorable in the U.S. Marine Corps from March 1974 until December 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran’s second period of service in the U.S. Marine Corps is dishonorable and therefore a bar to all gratuitous VA benefits. Therefore, a claim for service connection cannot be based on the Veteran’s second period of service. In the August 2018 appellant brief, the Veteran’s representative challenged a February 1976 VA decision that determined the Veteran’s December 1975 discharge was under dishonorable conditions and a bar to benefits. The representative presented argument that there were compelling circumstances for the Veteran’s unauthorized absences during his second period of service. The Veteran’s character of discharge is not on appeal, and the August 2018 arguments regarding the Veteran’s character of discharge will not be addressed in this decision. Within one year following an unappealed October 2013 rating decision that denied many issues currently on appeal, service treatment records (STRs) for the Veteran’s dishonorable period of service were added to the record. While the newly received service department records documented treatment for some of the Veteran’s claimed conditions, those records are not relevant to the Veteran’s service-connection claims because service-connected benefits cannot be awarded for disease or injuries incurred in or due to a dishonorable period of service. Thus, the October 2013 rating decision may not be reconsidered or reopened based on the newly received STRs. See 38 C.F.R. § 3.156(c). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran 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 between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Respiratory disorder A November 2008 rating decision denied service connection for a respiratory disorder because there was no evidence that the Veteran was diagnosed with sleep apnea or a respiratory disorder related to military service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. An October 2013 rating decision found that new and material evidence had not been presented sufficient to reopen the Veteran’s claim of entitlement to service-connection for a respiratory disorder, and did not address the claim on the merits. The November 2008 decision is the last final denial of the claim on the merits. The evidence of record at the time of the November 2008 decision included the Veteran’s STRs, private treatment records, and a private sleep study. The STRs showed that the Veteran reported shortness of breath on his entrance report of medical history, but the report of medical examination listed normal clinical findings for the lungs. A January 1973 STR documented the Veteran was prescribed cough medication, but did not detail the Veteran’s underlying complaint. The private treatment records from July and August 2008 showed diagnoses of chronic bronchitis and obstructive sleep apnea. The November 2008 rating decision did not list the private treatment records among the list of evidence considered. The Veteran initially appealed the November 2008 decision, but did not submit a timely appeal after an April 2010 statement of the case, therefore the November 2008 decision is now final. The April 2010 statement of the case did consider the private treatment records, but concluded that there was no evidence of a relationship between the diagnosed sleep apnea and the Veteran’s period of service. Since the November 2008 decision, additional Social Security Administration (SSA), private, and VA treatment records were associated with the claims file. Private medical records received from SSA dated March and May 2008 document the Veteran complained of shortness of breath with exertion for 5 months, and noted diagnoses of chronic obstructive pulmonary disease (COPD), right middle lobe nodule, and continued tobacco use. A CT scan showed bronchiectasis likely related to chronic post infections process, emphysematous changes, and a pulmonary nodule. In October 2018, the Veteran reported that he had sleep apnea due to mad cow disease that he contracted when he was stationed in Germany in 1971. The Board finds that new and material evidence has been presented. The evidence, including the 2008 private treatment records, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of diagnosed respiratory disorders that may be due to the Veteran’s period of service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). When considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Thus, the Veteran’s claim of entitlement to service connection for a respiratory disorder is reopened. 2. Psychiatric disorder, to include schizophrenia and PTSD In May 1999 the Veteran filed a claim for “stress” which he asserted was due to exposure to Agent Orange in Vietnam. A January 2000 rating decision denied entitlement to service connection for a stress condition, also characterized as PTSD. The Veteran did not appeal the January 2000 decision and it became final. An October 2013 rating decision denied entitlement to service-connection for schizophrenia on the merits, and purported to deny reopening of the claim of entitlement to service connection for PTSD. In the analysis, however, the AOJ addressed the claim of entitlement to PTSD on the merits. The decision explained that service-connection for PTSD remained denied because there was no clinical diagnosis of PTSD that could be associated with the Veteran’s military service. The October 2013 decision also denied entitlement to service-connection for schizophrenia because there was no evidence of a diagnosis of schizophrenia in service or within one year of separation, or other evidence showing that schizophrenia was otherwise due to service. Because the Veteran’s claim of entitlement to PTSD was addressed on the merits in the October 2013 decision, that decision is the most recent final denial. While the October 2013 rating decision separately adjudicated the claims of entitlement to service connection for schizophrenia and PTSD, for ease of adjudication the issues will combined as entitlement to service connection for a psychiatric disorder generally. The relevant evidence of record at the time of the October 2013 rating decision included the Veteran’s Army STRs showing that he was psychiatrically evaluated in January 1973 after demonstrating poor attitude, poor job performance, poor personal hygiene, and was felt to be mentally unstable by his commanding officer. The evaluator concluded the Veteran did not have a psychological disorder. A May 1993 SSA psychiatric evaluation report documented diagnoses of chronic alcoholism, polysubstance abuse, and rule out schizophrenia. An April 1994 VA mental disorder examination documented the Veteran’s testimony that he was suspected of having a mental problem in the Army after he threatened to kill another lieutenant with whom he had some conflicts, and that another lieutenant threatened to kill him. The examiner determined the Veteran was not a reliable historian. The Axis 1 diagnostic impressions at the time were rule out paranoid schizophrenia, organic mental disorder, and continuous alcohol abuse. There was an additional Axis 2 diagnosis of paranoid personality. May 1999 correspondence from the Veteran reports a stress disorder is due to his service in Vietnam, although there is no evidence he served in Vietnam. Available treatment records from VA included an October 2005 VA treatment note reporting the Veteran had a history of being hit in the head with a brick at age 9. A September 1999 VA treatment record noted an impression of dysthymic disorder and rule out alcohol abuse. An April 2007 VA psychiatry consultation report noted diagnoses of adjustment disorder not otherwise specified, rule out depression, and rule out alcohol abuse. A December 2009 VA neuropsychology consult documented the Veteran had memory problems all of his life, he was diagnosed with a learning problem, and that he did not graduate high school. The clinical psychologist explained that the Veteran did not have a prior history of schizophrenia and did not describe symptoms consistent with that diagnosis. Instead, the examiner only noted a diagnosis of anxiety disorder not otherwise specified per the record. A July 2010 VA primary care note listed schizophrenia and PTSD under the Veteran’s past medical history. The Veteran’s STRs from his dishonorable period of service were added to the record in May 2014, within one year of the October 2013 decision. Those records, while not relevant to the Veteran’s service-connection claim, do show that in September 1974 the Veteran had a period of psychiatric hospitalization for observation for a suspected hysteric reaction, but no psychiatric abnormalities were noted upon observation. In October 1975 the Veteran was assessed as having a head injury when he was a child with a secondary neurologic disorder by history, and underlying personality disorder. As explained earlier, the claim cannot be reconsidered on the basis of the additional Marine Corps STRs because they provide no support for the Veteran’s claim as service-connected benefits may not be granted based on that period. Therefore, the claim may not be reconsidered on the basis of newly received service department records. Within one year of the October 2013 decision, SSA records were obtained that showed the Veteran’s August 2013 report that he had schizophrenia and PTSD since his second period of service. Also, in October 2014 the Veteran was afforded a VA PTSD evaluation. The examiner reported the Veteran did not have a diagnosis of PTSD or schizophrenia. Instead, the Veteran’s current symptoms were most consistent with a diagnosis of schizotypal personality disorder, which was not due to his period of service. Rather, the examiner found that the in-service psych symptoms represented a characterological disorder that began prior to his military service. The SSA records and October 2014 VA examination do not constitute new and material evidence. The evidence, while new, is either redundant or not material because it does not relate to an unestablished fact necessary to substantiate the claim. The Veteran’s report to SSA is redundant of his prior claims, and the October 2014 VA examination report does not show that a psychiatric disorder is due to the Veteran’s period of service. Thus, no new and material evidence was received within one year of the October 2013 decision and it became final. Additional evidence received more than a year after the October 2013 decision includes the Veteran’s December 2014 statement in support of a claim for PTSD in which he reported he had a fight with an officer who hit him in the head and he responded in kind. Also, in January 2016 VA obtained an addendum opinion on whether the Veteran’s diagnosed preexisting schizotypal personality disorder was aggravated by his active duty service. The psychologist concluded that the Veteran’s schizotypal personality disorder was not aggravated beyond its natural progression by the Veteran’s military service, because he had behavioral problems in school prior to service and those same symptoms continued in service. VA treatment records from September and October 2018 document treatment for cocaine and marijuana abuse, and in October 2018 the Veteran denied any psychiatric complaints. Last, in October 2018 the Veteran submitted a claim in which he asserted that schizophrenia was due to exposure to mad cow disease in Germany in 1971. New and material evidence has not been received sufficient to reopen the claim. The Veteran’s 2014 and October 2018 statements, although new, do not constitute material evidence. The 2014 statement is redundant of the Veteran’s reports at the April 1994 VA examination. The October 2018 statement does not raise a reasonable possibility of substantiating the claim because there is no indication that the Veteran had mad cow disease, that schizophrenia is diagnosed, or that schizophrenia is due to the Veteran’s period of service. The January 2016 addendum does not relate to an unestablished fact necessary to substantiate the claim, as the it does not demonstrate that a diagnosed psychiatric disorder began in service, or is otherwise is due to the Veteran’s period of service. Service connection may not be granted for congenital or developmental defects, including personality disorders, and the presumption of soundness does not apply to congenital defects. 38 C.F.R. §§ 3.303 (c), 4.9. (2018). In sum, new and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder and the claim to reopen is denied. 3. Lumbar spine disorder An October 2013 rating decision denied service connection for lumbosacral strain, claimed as low back pain, because lumbosacral strain was neither incurred in nor caused by service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Board has recharacterized the Veteran’s claim as one of entitlement to a lumbar spine disorder as he sought service connection for low back pain generally. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.) Evidence of record at the time of the October 2013 decision included the Veteran’s October 1987 claim in which he reported he had scoliosis of the lumbar spine since 1979. A March 1984 private treatment note documented the Veteran injured his lower back at work in 1980, and reinjured the back in January 1983. The assessment was chronic sprain and strain of the lumbosacral spine with myofascitis and localized evidence of nerve root irritation due to his previous work-related injuries. An April 1994 VA examination that documented the Veteran had a work related lower back injury in 1980 and had recurrent back pain since then. The clinical assessment was chronic lumbosacral strain and thoracic spine abnormality with concave curvature, and radiographs showed mild degenerative changes of the lumbar spine. June 2013 private treatment notes the Veteran sustained a lumbar spine injury from a work-related accident in August 2012. Those records show diagnoses related to the lumbar spine, but do not include any evidence that a diagnosed lumbar spine disorder was incurred in or otherwise due to the Veteran’s first period of service. Evidence submitted after the decision includes SSA records pertaining to the Veteran’s claim for disability benefits, additional private treatment records, VA treatment records, and an October 2018 statement from the Veteran. Included in the SSA records were August and September 2012 private treatment notes further detailing the Veteran’s August 2012 work related back injury, and assessments of lumbosacral strain with radiculopathy and lumbar degenerative disc and joint disease; and a June 2013 adult function report where the Veteran reported an August 2012 lower back injury. Newly received private treatment records dated April 2013 also discussed the Veteran’s August 2012 back injury with diagnoses of severe degenerative disc disease of the lumbar spine with moderate stenosis. VA treatment records from October 2013 onward continue to show the Veteran had lower back symptoms and degenerative changes of the spine. See e.g. June 2017 and July 2018 VA treatment notes. Last, in October 2018 the Veteran submitted another claim asserting that lumbosacral strain was due to mad cow disease to which he was exposed in Germany in 1971. The Board finds that new and material evidence has not been presented. While the evidence received since the October 2013 decision is new, the evidence is not material. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. The newly received SSA, VA, and private treatment records do not include any indication that the Veteran had a lumbar spine injury in service, that a lumbar spine disorder existed from service, or that a lumbar spine disorder was otherwise related to the Veteran’s period of service. The Veteran’s October 2018 statement is not material evidence, even assuming its credibility, because it does not raise a reasonable possibility of substantiating the claim. The Veteran’s STRs are silent for any mention of mad cow disease, and there is no indication that mad cow disease could cause a lumbar spine disorder. Accordingly, the Veteran’s claim of entitlement to service-connection for a lumbar spine disorder is not reopened. 4. Hypertrophic gastritis An October 2013 rating decision denied service connection for hypertrophic gastritis because there was no evidence that hypertrophic gastritis occurred in or was caused by service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the October 2013 decision includes the Veteran’s STRs from his first period of service, a VA examination report, and VA treatment records. The STRs are silent for any stomach complaints or diagnoses. The April 1994 VA examination report documented the Veteran had a sudden onset of epigastric pain two weeks prior that had become chronic, and the examiner diagnosed symptoms of a hyperacidity type syndrome. The VA treatment records include a June 1996 note documenting the Veteran had a 5 to 6-day history of epigastric distress with an assessment of probable peptic ulcer disease versus alcoholic gastritis, and possible pancreatitis; a February 1999 note documenting diagnoses of gastroesophageal reflux disorder versus peptic ulcer disease; and an April 1999 record documenting the Veteran had burning pain in the stomach for a year, and the Veteran was given antacids. Those records do not show a stomach disorder or symptoms of a stomach disorder in service, or otherwise indicate that the Veteran’s stomach problems were due to service. Within one year of the October 2013 decision, additional STRs from the Veteran’s second period of service were added to the record. Those records, while they do show treatment for possible viral gastroenterology in April 1975 in service, are nevertheless not relevant to the claim because service connected benefits for a stomach condition cannot be granted based on the Veteran’s period of dishonorable service. Therefore, the claim may not be reconsidered on the basis of newly received service department records. The Veteran was afforded a VA examination in October 2014 to determine whether any currently diagnosed stomach condition was etiologically related to the April 1975 stomach complaints. The Veteran denied any current gastric complaints and the examiner opined that the in-service possible viral gastroenteritis was an acute illness that resolved without causing a chronic gastrointestinal issue. Though new and relevant, the evidence received within one year of the October 2013 decision was not material because it did not relate to an unestablished fact necessary to substantiate the claim. Specifically, the evidence does not show that a stomach condition manifested during the Veteran’s first period of service, or that a currently diagnosed stomach condition is otherwise related to the Veteran’s first period of service. Thus, the October 2013 decision became final. Additional evidence received more than a year after the October 2013 decision includes VA treatment records from September 2013 until October 2018. Those treatment records continue to list an antacid medication among the Veteran’s active medications. See e.g. October 2017 VA medication list. The Board finds that new and material evidence has not been presented. The evidence, including the STRs, VA examination report, and VA treatment records is new because it was not previously submitted to VA. The evidence is not, however, material because it does not relate to unestablished facts necessary to establish the claim. None of the newly received evidence indicates that a currently diagnosed stomach condition is related to the Veteran’s first period of service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Thus, the Veteran’s claim of entitlement to service-connection for hypertrophic gastritis is not reopened. 5. Diabetes mellitus An October 2013 rating decision denied service connection for diabetes mellitus because there was no evidence that diabetes mellitus developed during the Veteran’s qualifying period of service or within one year after separation. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The evidence of record at the time of the October 2013 decision includes the following: STRs from the Veteran’s first period of service that do not include any diagnosis of diabetes or treatment for diabetes, and the Veteran’s service department records that show his only overseas service was in Germany; a May 1999 letter in which the Veteran wrote that he was exposed to Agent Orange in Vietnam; a January 2000 rating decision finding that the Veteran had no service in Vietnam or Agent Orange exposure; VA treatment records from June 2004 documenting the Veteran requested testing for diabetes because his twin sister had diabetes; an October 2005 VA physician note that the Veteran was at risk for developing diabetes mellitus due to a strong family history of the disease; and VA test results confirming a diagnosis of diabetes in September 2012. Those records do not show that diabetes began in service or within one year of separation, or that diabetes is otherwise directly or presumptively related to service. The pertinent evidence of record received after the October 2013 rating decision include additional VA treatment records through October 2018 that continue to show treatment for diabetes. See e.g. December 2016 VA treatment note. Also, in October 2018 correspondence, the Veteran wrote that his diabetes is due to mad cow disease he contracted while in Germany in 1971. The Board finds that new and material evidence has not been presented. The evidence, including the VA treatment records and lay testimony, is new because it was not previously submitted to VA. The evidence is not material, however, because it does not relate to unestablished facts necessary to establish the claim and does not raise a reasonable possibility of substantiating the claim. The VA treatment records do not indicate that diabetes is related to service in any way. The Veteran’s October 2018 statement does not raise a reasonable possibility of substantiating the claim. Again, the STRs are silent for any mention of mad cow disease, and there is no indication that mad cow disease could cause diabetes mellitus. Accordingly, the Veteran’s claim of entitlement to service-connection for diabetes mellitus is not reopened. 6. Parkinson’s disease The October 2013 rating decision denied service connection for Parkinson’s disease because there was no evidence of the disorder in service or at any point thereafter. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 2013 decision includes the Veteran’s STRs that were silent for a diagnosis of Parkinson’s disease, VA treatment records through September 2013 that did not show a diagnosis of Parkinson’s disease, and scattered private treatment records that did not include any reference to Parkinson’s disease. Since the October 2013 decision, no medical evidence has been added to the record that shows a diagnosis of Parkinson’s disease. Thus, there is no new or material evidence demonstrating a current diagnosis of Parkinson’s disease and the claim may not be reopened. 7. Alzheimer's disease The October 2013 rating decision denied service connection for Alzheimer’s disease because there was no evidence of the disorder in service or at any point thereafter. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the 2013 decision includes the Veteran’s STRs that were silent for a diagnosis of Alzheimer’s disease, VA treatment records through September 2013 that did not show a diagnosis of Alzheimer’s disease, and scattered private treatment records that did not include any reference to Alzheimer’s disease. Since the October 2013 decision, no medical evidence has been added to the record that shows a diagnosis of Alzheimer’s disease. Thus, there is no new or material evidence demonstrating a current diagnosis of Alzheimer’s disease and the claim may not be reopened. REASONS FOR REMAND Entitlement to service-connection for a cervical spine disorder was denied in an October 2013 rating decision because there was no evidence of an in-service neck injury. Within one year of that decision, an October 2014 VA examination report documented the Veteran’s testimony that he was hit in the neck by a lieutenant and had ongoing neck pain since then. The October 2014 VA examination report is new and material evidence because it pertained to an unestablished fact necessary to substantiate the claim. The report was received within one year of the October 2013 rating decision, therefore that decision did not become final. See 38 C.F.R. § 3.156(b). The proper issue before the Board is entitlement to service connection for a cervical spine disorder. 1. Entitlement to service connection for a cervical spine disability is remanded. The issue of entitlement to service connection for a cervical spine disorder is remanded to obtain an addendum opinion based on an accurate reporting of the Veteran’s medical history. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The October 2014 examiner based their negative etiology opinion in part on a finding that the Veteran did not have any cervical spine complaints until 2012, but the medical evidence shows cervical spine symptoms and diagnoses existed prior to 2012. A February 2008 CT scan of the neck showed prominent anterior cervical spondylosis, calcification of the anterior longitudinal ligament components, and possible cervical canal spinal stenosis on a developmental basis. The findings were generally interpreted as cervical arthritis. VA treatment records show complaints of neck pain beginning in August 2008. Because the October 2014 examiner inaccurately reported the facts, remand is required for an addendum opinion. 2. Entitlement to service connection for a respiratory disorder is remanded. This issue is remanded to obtain a VA examination and opinion. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran reports that he was treated for a respiratory disorder in service, and STRs from his first period of service show he was treated with cough medication in January 1973. Private and VA treatment records note several respiratory disorders, including sleep apnea, COPD, right middle lobe nodule, bronchiectasis likely related to chronic post infections process, emphysematous changes, and a pulmonary nodule. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the claimed cervical spine disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must clarify all cervical spine diagnoses. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disorder had onset in, or is otherwise related to, active service. (c.) The examiner must specifically address the February 2008 private cervical spine imaging studies documenting anterior cervical spondylosis and calcification of the anterior longitudinal ligament components, and possible cervical canal spinal stenosis on a developmental basis; and the Veteran’s complaints of neck pain documented in August and September 2008 VA treatment records. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed respiratory disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner is requested to clarify all currently diagnosed respiratory disorders. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed respiratory disorder had onset in, or is otherwise related to, active military service. (c.) The examiner must specifically address the Veteran’s assertions of an in-service treatment for a respiratory disorder, and the January 1973 STR documenting the Veteran was treated with cough medication. Continued on Next Page 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel