Citation Nr: 1825293 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-38 504A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for postoperative residuals of a left humerus fracture (left arm disability). 2. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a low back condition. 3. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a right leg injury. 4. Entitlement to service connection for a sleep disorder, to include as secondary to post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1969 to September 1972. He had subsequent service in the U.S. Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2012 and October 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The August 2012 rating decision denied the service connection for a sleep disorder. The October 2013 rating decision denied the new and material evidence claims. As there are three new and material evidence claims, the Board will briefly summarize each claim's procedural history, separately. The Veteran originally filed a claim for service connection for a left arm disability in August 1976. That claim was ultimately denied in November 1976. This decision was not appealed and it became final. See 38 U.S.C. § 7104 (West 2012). The Veteran sought to reopen his service connection claim in April 2004. The RO denied this claim in April 2005 because it did not show that the Veteran's left arm disability had an in-service incident or nexus. This decision also was not appealed and became final. See 38 U.S.C. § 7105 (West 2012). The Veteran sought to reopen his service connection claim in August 2009. The RO denied this claim in October 2009 because it did not show that the Veteran's left arm disability had an in-service incident or nexus. This decision also was not appealed and became final. See 38 U.S.C. § 7105 (West 2012). The Veteran further did not submit any relevant evidence or argument within one year of the October 2009 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Veteran originally filed a claim for service connection for a low back condition in August 2009. That claim was ultimately denied in October 2009. The Veteran further did not submit any relevant evidence or argument within one year of the October 2009 rating decision which would render it non-final for VA adjudication purposes. See Buie, supra. The Veteran originally filed a claim for service connection for a right leg injury in April 2004. That claim was ultimately denied in April 2005. The Veteran further did not submit any relevant evidence or argument within one year of the April 2005 rating decision which would render it non-final for VA adjudication purposes. See Buie, supra. FINDINGS OF FACT 1. In a rating decision dated on October 22, 2009, the AOJ denied a claim of service connection for a left arm disability and low back condition; this decision was not appealed and became final. 2. The evidence received since the October 2009 rating decision is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. In a rating decision dated on April 6, 2005, the AOJ denied a claim of service connection for a right leg injury; this decision was not appealed and became final. 4. The evidence received since the April 2005 rating decision is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 5. At no time during the pendency of the claim does the Veteran have a diagnosis of a sleep disorder. CONCLUSIONS OF LAW 1. The October 2009 rating decision that denied the Veteran's claims of entitlement to service connection for a left arm disability and low back condition are final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received since the October 2009 rating decision is not new and material, and the Veteran's claims for service connection for a left arm disability and low back condition are not reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The April 2005 rating decision that denied the Veteran's claim of entitlement to service connection for a right leg injury is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. Evidence received since the April 2005 rating decision is not new and material, and the Veteran's claims for service connection for a right leg injury is not reopened. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Arm Disability, Low Back Condition, Right Leg Injury As explained above, in April 2005 and October 2009, the AOJ denied the Veteran's service connection claims for a left arm disability, low back condition, and right leg injury. Regardless of the AOJ's actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2012) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim for the right leg injury is the April 2005 rating decision, and for the left arm disability and low back condition is the October 2009 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Regarding the left arm disability, in its August 1976 rating decision, the AOJ denied the Veteran's claim because there were no in-service incidents in the Veteran's service treatment records stating that he had reinjured childhood left arm fractures, or complained of or sought treatment for a left arm disability. The childhood fractures were noted on his induction examination. The AOJ found that military service did not aggravate his pre-existing left arm disability. The Veteran did not appeal this decision and he also did not submit any relevant evidence or argument within one year of the August 1976 rating decision which would render it non-final for VA adjudication purposes. The Veteran submitted requests to reopen his claim for service connection for a left arm injury in April 2004 and August 2009. In its April 2005 and October 2009 rating decisions, the AOJ denied the Veteran's claim because the evidence submitted and considered still did not demonstrate the onset of a left arm injury or aggravation of his pre-existing left arm injury during active duty. Again, the Veteran did not appeal these decisions and he also did not submit any relevant evidence or argument within one year of the October 2009 rating decision which would render it non-final for VA adjudication purposes. Thereafter, in September 2012, the Veteran requested to reopen his claim for service connection for a left arm injury. The AOJ denied the Veteran's claim because the evidence submitted and considered did not show an in-service incident or a nexus. Regarding the low back condition, the AOJ denied the Veteran's claim in October 2009 because there was no diagnosis of a low back condition. The Veteran did not appeal this decision and he also did not submit any relevant evidence or argument within one year of the October 2009 rating decision which would render it non-final for VA adjudication purposes. Thereafter, in August 2012, the Veteran requested to reopen his claim for service connection for a low back condition. The AOJ denied the Veteran's claim because the evidence submitted and considered still did not show a diagnosis. Regarding the right leg injury, the AOJ denied the Veteran's claim in April 2005 because there was no diagnosis of a right leg injury. Although the Veteran's service treatment records did show that he suffered a superficial wound to the right medial knee, this was not considered chronic as no residuals from it or disability incurred due to it, was found. The Veteran did not appeal this decision and he also did not submit any relevant evidence or argument within one year of the April 2005 rating decision which would render it non-final for VA adjudication purposes. Thereafter, in August 2012, the Veteran requested to reopen his claim for service connection for a right leg injury. The AOJ denied the Veteran's claim because the evidence submitted and considered still did not show a diagnosis. In November 2013, the Veteran filed a Notice of Disagreement for all three claims. In a July 2015 Statement of the Case the AOJ denied the claims, in pertinent part, because the evidence did not establish an in-service incident or nexus for the Veteran's left arm disability; nor a diagnosis for his low back condition or right leg injury. Evidence added to the claims file since the April 2005 and October 2009 rating decisions consist of VA treatment records from the Amarillo VA medical center from August 2007 to September 2014. The records show complaints of and treatment for left arm, back, and right leg pain. The Board finds that this evidence is new, in that it was not before it at the time of the final rating decisions in April 2005 and October 2009. However, it must find that this evidence is cumulative and redundant of the evidence already of record and does not relate to an unestablished fact, or raise a reasonable possibility of substantiating the Veteran's claims. Essentially, although the records show complaints of and treatment for his left arm, back, and right leg, they do not provide diagnoses for any of the claimed disabilities other than labeling them as left arm pain, back pain and right leg pain. The Veteran's complaints of and the VA medical center records of pain is not a diagnosis for his claimed back or right leg disabilities. There is no opinion that the Veteran's left arm childhood fractures were aggravated by his military service. Furthermore, there is no etiology opinion on any of the claimed disabilities. Therefore, the Board finds that the evidence received since the April 2005 and October 2009 final rating decisions are cumulative or redundant of the evidence of record at the time of the prior decision, and does not raise a reasonable possibility of substantiating the Veteran's claims. The newly-submitted evidence reflects that the Veteran is receiving treatment for left arm, low back, and right leg pain. The records do not contain any diagnoses, aggravation opinion, or etiology opinions. Consequently, new and material evidence has not been received to reopen his claims for service connection of a left arm disability, low back condition, or right leg injury. As new and material evidence has not been received, the benefit of the doubt doctrine is not applicable in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Sleep Disorder The Veteran seeks service connection for a sleep disorder, to include as secondary to his service-connected PTSD. In an August 2012 notice of disagreement letter, the Veteran's representative stated the Veteran was diagnosed with sleep apnea. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2017). For there to be any service connection, the first element is a diagnosis. As the record does not reflect a current diagnosis for any sleep disorder, including sleep apnea, the Board determines that a current diagnosis of a sleep disorder cannot be established. Lacking a current diagnosis, the cornerstone element of service connection has not been met, and service connection for hypertension cannot be established on any basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that a current diagnosis is the cornerstone of a claim for service connection). Accordingly, service connection for a sleep disorder is denied. The Board recognizes the Veteran's lay statements regarding his sleep disorder. However, in weighing the evidence, the Board finds that the medical evidence of record preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER New and material evidence not having been received, the Veteran's application to reopen the previously denied claim for service connection for postoperative residuals of a left humerus fracture, is denied. New and material evidence not having been received, the Veteran's application to reopen the previously denied claim for service connection for a low back condition, is denied. New and material evidence not having been received, the Veteran's application to reopen the previously denied claim for service connection for a right leg injury, is denied. Service connection for a sleep disorder, to include as secondary to PTSD, is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs