Citation Nr: 1826303 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 13-12 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitled to restoration of status of competency. 2. Whether new and material evidence has been received to reopen a claim for service connection for multiple sclerosis. 3. Whether new and material evidence has been received to reopen a claim for service connection for Devic's disease (neuromyelitis optica). 4. Entitlement to a temporary total rating based on hospitalizations in excess of 21 days. 5. Entitlement to a temporary total rating based on need for convalescence following past hospitalizations. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from May 1973 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, in September 2009, which denied restoration of competency, and October which denied reopening of claims for service connection for multiple sclerosis and Devic's disease and also denied entitlement to temporary total ratings based on past hospitalizations and denied entitlement to temporary total ratings based need for convalescence following past hospitalizations. The Veteran, who has been determined to be incompetent for the purpose of handling VA compensation, testified in support of her claims, as did her daughter, at an RO hearing in March 2013. A transcript thereof is on file. The Veteran was scheduled for a Board videoconference on December 2, 2015. However, she failed to attend that hearing. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran lacks the mental capacity to contract or manage his own affairs, including disbursement of funds without limitation. 2. The Veteran was notified by letter of February 19, 1998, of a rating decision that month which denied reopening of claims for service connection for multiple sclerosis with blindness of both eyes. The Veteran did not appeal that decision and it is final. 3. The Veteran was notified by letter of August 25, 2005 of a rating decision that denied service connection for Devic's disease (neuromyelitis optica). The Veteran did not appeal that decision and it is final. 4. The evidence pertaining to the Veteran's claims for service connection for multiple sclerosis and for Devic's disease, submitted subsequent to the February 1998 and August 2005 rating decisions which was not previously submitted, does not bear directly and substantially upon the specific matters under consideration, and is cumulative or redundant, and is not so significant that it must be considered in order to fairly decide the merits of the claims. 5. Entitlement to temporary total ratings based on past periods of hospitalization in excess of 21 days and to temporary total ratings based on past periods of convalescence following hospitalizations was denied in previously adjudicate rating decisions of which the Veteran was notified and which were not appealed; and those rating decisions are final. CONCLUSIONS OF LAW 1. The Veteran is incompetent for VA purposes and the criteria for restoration of competency are not met. 38 U.S.C. §§ 5103, 5103A, 5106, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.353 (2017). 2. The February 1998 rating decision that denied service connection for multiple sclerosis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. The August 2005 rating decision that denied service connection for Devic's disease is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence has not been submitted to reopen the claims for service connection for multiple sclerosis and for Devic's disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for a temporary total rating based on past hospitalizations in excess of 21 days are not met. 38 C.F.R. § 4.29 (2017). 6. The criteria for a temporary total rating based on past convalescence following past hospitals are not met. 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). However, the Board notes that, as here, an applicant seeking restoration of competency is not seeking benefits under chapter 51, and as such, the VCAA is not applicable. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). As to the other claims on appeal, by letter in June 2010 the RO satisfied its duty under the Veterans Claims Assistance Act of 2000 (VCAA) to notify the Veteran under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Previously, in providing VCAA required notice information as to the reason or reasons for a prior denial, i.e., which element or elements were was not previously substantiated. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VAOPGCPREC 6-2014 determined that the VCAA only requires claim-specific notice and not case-specific notice, i.e., there is no requirement to provide notice of the reason or reasons for the prior denial. 38 C.F.R. § 3.103(c)(2) requires that a presiding hearing officer fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The RO hearing in March 2013 focused on the elements necessary for the Veteran's attempt to restore her competency to handle her VA benefits, and the elements needed for substantiation of her other claims. She was mailed a copy of the transcript of that hearing in April 2013. While assistance is required, 38 C.F.R. § 3.103(c)(2) does not require that one presiding at a hearing pre-adjudicate a claim. Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (per curiam). Moreover, in this case there is no allegation of any deficiency with respect to the RO hearing, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran service records are on file, as are VA treatment records. The Veteran has been afforded VA examinations as to the claim for restoration of competency, including following the 2013 RO hearing. She was not afforded VA nexus examinations addressing the etiology of her multiple sclerosis or Devic's disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). This is because under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016); and Bryant v. Shinseki, 23 Vet. App. 488 (2010) (duty to assist a hearings). As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Restoration of Competency A mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. 38 C.F.R. § 3.353(a). Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance, and, disbursement of benefits. Such determinations are final and binding on field stations for these purposes. 38 C.F.R. § 3.353(b)(1). Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary to select a method of disbursing payment, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments; and authorize disbursement of the benefit. 38 C.F.R. § 3.353(b)(2). If in the course of fulfilling responsibilities the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in 38 C.F.R. § 3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs. 38 C.F.R. § 3.353(b)(3). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations relative to incompetency should be based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency. 38 C.F.R. § 3.353(c). Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353(d). Analysis The Veteran is service-connected for pelvic inflammatory disease (PID) with removal of uterus and both ovaries, rated 50 percent disabling; and herpes simplex, rated noncompensably disabling. In this case, the RO found the Veteran to be incompetent for VA purposes. The Veteran contends that she should have control over her own funds, and that this would allow her to live as independently as possible. She implicitly argues that her nonservice-connected psychiatric disorder is essentially under control and that, therefore, she should be permitted to manage her own funds. Essential to the Veteran's contentions is the premise that her current guardian is not paying her recurring living expenses in a manner in which her bills are paid on time and fully paid when due. She has submitted reports from various companies and rendered testimony to this effect. However, she has not argued that her recurring living expenses are not being paid at all but only that the manner in which they are being paid adversely affects her credit rating. However, the question before the Board is not whether her guardian is performing duties in a proper manner. Thus, the matters which are raised as to this are not dispositive. Rather, the question before the Board is whether the Veteran (not her guardian) is competent to handle her VA disability compensation. A review of the record reveals that the Veteran has rendered testimony and submitted statements regarding her assertions of competency and this is the only evidence in recent years in support of the Veteran's contention that she is competent. While these lay assertions are competent evidence regarding symptoms that Veteran experiences, they are not competent medical evidence on the relevant medical questions in this case. Zang v. Brown, 8 Vet. App. 246 (1995); see also Moray v Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). This is because she and her daughter are laypersons and are generally not considered capable of opining on matters requiring medical knowledge, such as the severity of the Veteran's nonservice-connected psychiatric disorder. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). The record shows that the Veteran has been treated extensively for many years of her chronic bipolar manic depression. In an April 2007 statement Dr. R. Grumet reported having previously treated the Veteran, but not since 2000. She had a history of a bipolar disorder but without recent treatment by that physician or recent psychiatric hospitalizations in the past year. After a mental status examination it was opined that the Veteran was capable of handling her own affairs and her funds. June 2008 and April 2009 VA Field Examination report reflects that the field examiners felt that the Veteran was capable of handling her VA funds independently. A February 2009 official psychiatric examiner opined that the Veteran was not mentally capable of managing benefit payments due to her service-connected schizophrenia and because she was legally blind and without a family support system. A February 2009 official psychiatric examiner noted that the Veteran had an Associate Degree in Secretarial Science from a technical college. Since she developed her mental condition there have been major changes in her daily activities, such as becoming legally blind. She was unable to work and continued to have difficulty making friends and keeping relationships. She was isolated because she could not drive and had difficulties locating help from others. When she attempted to make friends on the bus, they usually took advantage of her in some way, i.e., stealing her money orders. She had not worked for 25 years because she is mentally incapable of working. Significantly, it was noted that she was not a reliable historian, because she changed her story from time to time. On mental status examination her behavior is inappropriate. Affect and mood evaluations indicated an impaired impulse control, some unprovoked irritability and periods of violence that affects motivation. Her speech was intermittently illogical and irrelevant. She showed impaired attention and/or focus; and she forgot quickly and found it difficult to remain consistent on a task. There were signs of suspiciousness with the following example: she stated that people were taking her money orders and money from her. A delusional history was present intermittently, for example she had a delusion of her cat taking a plunger out of her hand and beating her with it. She states that she was able to communicate with her cat and cat talked to her, calling her mommy. Hallucinations were present intermittently, including auditory hallucinations, i.e., hearing the cat calling her "mommy." Thought processes were impaired as she had difficulty understanding directions. She was concerned that she did not know where she was many times. Judgment was impaired because she met people on a city bus and trusted them around her personal belongings, and because she would leave her home and be unable to find her way back. Her memory was moderately impaired and she had problems with retention of highly learned material, and she forgot to complete tasks. She had problems with directions and dates. The examiner noted that the Veteran continued to experience psychotic episodes from time to time. The examiner opined that the Veteran was not mentally capable of managing benefit payments in her own interest due, in part, to being legally blind and without a family support system. Mentally, she was intermittently unable to perform activities of daily living. A VAMC Patient Advocate, B. S., reported in October 2009 that he had been in contact with the Veteran for 5 year and was aware of her difficulties. He reported that the Veteran kept a rational approach in resolving problems and she was resilient in handling her financial affairs, including ensuring that bills were paid in full and on time. At the March 2013 RO hearing the Veteran addressed primarily the matter of what she felt were the inadequacies in the performance of her appointed guardian in not paying bills in full and on time, pointing to statements submitted from several financial sources which indicated that when she had been in charge of paying her bills they were pain in full and on time, but that such was not the case with the guardian paying her bills. It was agreed to arrange for yet another psychiatric evaluation to assess her competency. Pursuant to the agreement at the RO hearing, an April 2013 official psychiatric examination was conducted. At that time her Global Assessment of Functioning (GAF) score was 25. The examiner stated that there was total social and occupational impairment. The Veteran denied being psychotic but the examiner stated that she was very disorganized and floridly psychotic throughout the examination. She had allegedly become blind in 1993. She was manic, delusional, and made non-sequory responses to most queries. It was opined that she was unable to manage her financial affairs and because she was floridly psychotic. Analysis The Board has considered the Veteran's contentions and the testimony at the RO hearing by the Veteran and her daughter. However, neither they nor the individuals at financial institutions that submitted statements in support of her efforts to have her competency restored, nor the VA Patient Advocate have the medical training to properly assess the severity of a psychiatric disability, which is the primary reason that she has been determined to be incompetent. Even this, alone, was not the reason she was found incompetent. Rather, it is the fact that her service-connected psychiatric disorder is now compounded by nonservice-connected multiple sclerosis and blindness (the Devic's disease for which she also seeks service connection) that she has been found incompetent. No additional information has been submitted from the Veterans Service Center Manager suggesting that the Veteran is competent. Here, the only medical opinions on file are by trained medical professionals. All of these since 2009 have opined that the Veteran is incompetent. Moreover, these assessments represent the definitive opinions in the record of the Veteran's competency, that is, there is no recent contradictory medical evidence or opinion on file. In summary, due to the relatively high probative value of the opinions of the medical professionals and in the context of the Veteran's florid psychosis, multiple sclerosis, and legal blindness, the Board finds that the preponderance of the evidence is against a finding that the Veteran is competent. The weight of the evidence shows that, because of the Veteran's service-connected psychiatric disorder and nonservice-connected multiple sclerosis, she lacks the mental capacity to contact or manage her own affairs including disbursement of funds without limitation. For these reasons, the Board finds that the Veteran is incompetent for VA purposes. Thus, the Board finds that a preponderance of the evidence is against a finding of competency, and the appeal must be denied. Because the preponderance of the evidence is against a finding of competency, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. "[W]hen there is no reasonable doubt as to the competency of a claimant there is no obligation on the Board to fully discuss the presumption under [38 C.F.R.] § 3.353(d)." Simms v. Nicholson, 19 Vet. App. 453, 459 (2006) (citing Sanders v. Principi, 17 Vet. App. 329, 334 (2003)). Reopening and Temporary Total Ratings Background Service treatment records (STRs) are negative for multiple sclerosis and Devic's disease. The April 1973 examination for service entrance noted that she had reduced visual acuity and in an adjunct medical history questionnaire it was reported that she had a refractive error. An ophthalmologic examination at service entrance found that she had myopic astigmatism, correctable with lenses. Historically, a May 20, 1977, rating decision granted service connection for chronic pelvic inflammatory disease (PID) which was assigned an initial 10 percent rating effective November 12, 1976. An October 2, 1980 rating decision denied service connection for a left eye condition, noting that the service entrance examination revealed myositis astigmatism. The Veteran was hospitalized at Crawford Long Memorial Hospital from March 6th to the 17th 1981 and had a total abdominal hysterectomy with removal of her uterus on March 9, 1981. VA outpatient treatment (VAOPT) records reflect that the Veteran was seen in the 1980s for psychiatric symptoms and headaches. The Veteran was hospitalized at the Georgia Regional Hospital in August 1982 for psychiatric purposes. She was preoccupied with somatic complaints. The discharge diagnosis was hypochondriasis. A September 1982 statement of Dr. W. Bikoff shows that the Veteran was seen for headaches, which had worsened in the last two years. She complained of tingling of the right side of her body other than the trunk and her face. She answered most other inquires in the neurological review of systems positively in some way. She was disorganized in her thinking. Examination of her eyes and cranial nerves revealed no abnormality. The diagnosis was headaches, and the physician favored a psychogenic cause. A December 3, 1982 rating decision granted a temporary total rating under 38 C.F.R. § 4.30 (convalescence) with a 2 months extension for convalescence purposes beginning March 6, 1981, date of admission for surgery. This resulted in there having been a 10 percent schedular rating for PID with total hysterectomy from November 12, 1976; a 100 percent convalescent rating from March 1, 1981, and a 30 percent schedular rating was assigned effective June 1, 1981. That decision noted that the Veteran had undergone VA hospitalization from April 24, 1977, to May 10, 1977, for chronic pelvic pain. She underwent VA hospitalization from May 30, 1977 to June 1, 1977 for chronic pelvic pain and situational depression, but a hysterectomy was not recommended. She underwent private hospitalization from March 6, 1981 to March 17, 1981 for chronic pelvic pain, dysmenorrhea, pelvic adhesions, and left ovarian cyst and underwent a laparotomy, lysis of adhesions, total abdominal hysterectomy, and left ovarian cystectomy. She later was admitted for VA hospitalization on August 26, 1981 when residuals of her March 1981 surgery were noted. She then underwent private hospitalization at the Georgia Regional Hospital from the 18th to the 23rd of August 1982 for psychiatric treatment. The Veteran was notified of the December 3, 1982 rating decision by RO letter of December 22, 1982, but she did not appeal that decision. The Veteran was notified in October 1992 of a September 1992 rating decision which denied entitlement to a temporary total rating based on VA hospitalization from the 1st to the 28th of June 1992 for treatment of nonservice-connected psychiatric disability. She did not appeal that decision. The Veteran underwent VA hospitalization from July to October 1994 for treatment and evaluation of nonservice-connected multiple sclerosis. VA treatment records in 1994 reflect that the Veteran was treated for multiple sclerosis and Devic's disease. A November 1994 VA treatment record reflects that in February 1990 she realized she was having a vision problem and sought VA evaluation several days later when she was told she had "retrobulbar neuritis, for which she had surgery in the spring of 1992. In June 1993 she began having pain in her right eye. She had had numerous tests over the past two years due to a suspicion of multiple sclerosis, and the diagnosis was confirmed in September 1994. An October 18, 1994 rating decision denied service connection for blindness of the right eye and denied reopening of a claim for service connection for a left eye condition. The Veteran was notified of this rating decision by RO letter of November 23, 1994, but she did not appeal that decision. A June 2, 1995 rating decision denied service connection for multiple sclerosis. It was noted that VA records revealed that she was admitted on July 13, 1994 for blindness rehabilitation. She had optic neuritis and a working diagnosis of multiple sclerosis, but prior neurological symptoms of headaches were not actual manifestations of multiple sclerosis. The Veteran was notified of that decision by RO letter of June 13, 1995 but she did not appeal that decision. The Veteran underwent VA hospitalization from the 17th to the 29th of January 1996 for treatment and evaluation of nonservice-connected psychiatric disability and multiple sclerosis. A February 28, 1997 rating decision denied a temporary total evaluation because of treatment for a service-connected disorder requiring convalescence, under 38 C.F.R. § 4.30. The RO addressed the treatment during hospitalizations in 1986 and 1987, and noted that there was no hospitalization for any surgery in April 1996. Entitlement to a temporary total evaluation based on surgery in 1987 at a private hospital was denied because the claim had not been received within one year of the surgery, and convalescence following alleged surgery in April 1994 and April 1996 was denied because there was no evidence demonstrating surgery for a service-connected disorder. The Veteran was notified of that decision by RO letter of March 8, 1997 but she did not appeal that decision. The Veteran was hospitalized at a VA hospitalization from November 3rd to the 12th 1997 and had an exploratory laparotomy and bilateral salpingo oophorectomy on November 4, 1997. A February 13, 1998 rating decision denied reopening of a claim for service connection for multiple sclerosis and reopening of claims for right and left eye blindness. The Veteran was notified of that decision by RO letter of February 19, 1998, but she did not appeal that decision. A May 21, 1998 rating decision granted a temporary total rating effective November 3, 1997, date of VA hospitalization admission, until March 1, 1998, which allowed for 3 months of a temporary total rating based on convalescence. A November 8, 2002, rating decision denied service connection for Devic's disease. The Veteran was notified of that decision by RO letter of November 22, 2002, but she did not appeal that decision. An April 22, 2004 rating decision denied entitlement to temporary 100 percent evaluations due to surgery because prior awards were correctly made. That decision noted that prior awards of a convalescent rating in December 1982 and May 1998 were correct. Entitlement to other, additional convalescent awards was denied. That decision also denied reopening of a claim for service connection for Devic's disease. The Veteran was notified of that decision by RO letter of April 23, 2004, but she did not appeal that decision. An August 15, 2005 rating decision confirmed and continued the denial of service connection for Devic's disease. That decision proposed to find the Veteran incompetent. The Veteran was notified of that decision by RO letter of August 29, 2005, but she did not appeal that decision. A January 3, 2006 rating decision determined that the Veteran was incompetent. This was confirmed rating decisions on April 29, 2008 and September 18, 2009. Entered into VBMS in 2010 was a 2000 VAOPT Neurology record which states that the Veteran had a history of "MS (Devic's syndrome) diagnosed in '83." There was no indication that the Veteran's clinical records had been reviewed. Reopening of claims for service connection for multiple sclerosis and for Devic's disease (neuromyelitis optica) To establish service connection, the record must contain: (1) evidence of a current disorder; (2) evidence of in- service incurrence or aggravation of an injury or disease; and, (3) evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including multiple sclerosis and any manifestation thereof such as Devic's disease, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within seven (7) years of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b). 38 U.S.C. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Congenital or developmental defects, e.g., refractive errors of the eye, as such, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c); see also VAOPGCPREC 82-90. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. § 3.159(a)(1). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Only after new and material evidence is submitted and a previously denied claim is reopened, upon adjudication of a claim on a de novo basis, reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001). Reopening The Board, in the first instance, must rule on the matter of reopening because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In the first step in reopening, there is a three-part analysis. First, since the last disallowance on any basis, i.e., on the merits or denying reopening (Evans v. Brown, 9 Vet. App. 273, 285 (1996)), there must be new and material evidence (i.e., noncumulative evidence, not redundant, and not previously submitted) which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA evidence which was constructively on file and is now actually on file, may be new and material evidence if it is not cumulative and is relevant. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) and Smith (Russell) v. West, 12 Vet. App. 312, 314-15 (1999). If no new evidence is submitted, no analysis of materiality is required. Smith (Russell) v. West, 12 Vet. App. 312, 315 (1999). Second, the new evidence need be probative only as to each element that was a specified basis for the last denial without having to establish all elements needed for allowance. Third, it must be material. Under 38 C.F.R. § 3.156(b), 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 that was pending at the beginning of the appeal period. Under 38 C.F.R. § 3.156(c) the receipt of additional relevant service records will be cause to reconsider a prior rating decision denying a service connection claim. In the reopening context, the doctrine of the favorable resolution of doubt is not applicable unless the threshold burden of submitting new and material evidence to reopen has been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Analysis Initially, the Board notes that multiple sclerosis "is a disease with a prolonged course characterized by remissions and relapses over a course of many years." Bielby v. Brown, 7 Vet. App. 238, 266 (1994). "[O]ptic neuritis is an early symptom of multiple sclerosis." Futrell v. Brown, 45 F.3d 1534, 1536 (Fed.Cir. 1995). Devic's disease is neuromyelitis optica. Dorland's Medical Dictionary, Shorter Edition (1980), page 209. The evidence of record at the time of both the February 1998 rating decision which denied reopening of the claim for service connection for multiple sclerosis and the August 2005 rating decision which denied reopening of the claim for service connection for Devic's disease, established that the Veteran was first seen for symptoms of multiple sclerosis, consisting of optic neuritis in 1990 which was later diagnosed as Devic's disease in 1994. There was no earlier competent evidence of any manifestation of multiple sclerosis prior to that time inasmuch as she had astigmatism, a developmental disorder for which service connection is not granted, at entrance into service and her headaches were not shown to be a manifestation of multiple sclerosis. The additional evidence received since the February 1998 rating decision which denied reopening of the claim for service connection for multiple sclerosis and the August 2005 rating decision which denied reopening of the claim for service connection for Devic's disease, merely reflects continued treatment for multiple sclerosis. The only new evidence addressing the time of onset and etiology of the Veteran's multiple sclerosis and Devic's disease is the testimony of she and her daughter at the March 2013 RO hearing, and the VAOPT record in 2000 that multiple sclerosis and Devic's disease were reportedly diagnosed in 1983. At the March 2013 RO hearing the Veteran testified that she lost her sight in 1994. Pages 19 and 20. She stated that she went blind in 1994 but "lost my left eye in March 1990." Page 24. The Veteran testified that she had worn glasses prior to military service, since she was 13 years of age. Page 28. She testified that her Devic's disease was caused by her multiple sclerosis. Page 28. Her multiple sclerosis had been diagnosed in the 1980s by Dr. Evans." Page 29. Even assuming, without conceding that the Veteran's visual problems associated with multiple sclerosis dated as far back as 1990, as she testified, this is still a point in time more than severe (7) years after her November 1976 discharge from active service and, so, beyond the 7 year presumptive period for service connection for multiple sclerosis. As to her testimony that multiple sclerosis was first diagnosed as early as 1980 by a Dr. Evans, a review of the records shows that this is indisputably incorrect. Rather, the evidence is clear that the optic neuritis was the Veteran's earliest symptom of multiple sclerosis and was not shown to have manifested prior to 1990 and, thus, multiple sclerosis was not and could not have been diagnosed prior to that time. Similarly, the history reported in the 2000 VAOPT record of multiple sclerosis and Devic's disease having been reportedly diagnosed in 1983 was clearly based upon a history related by the Veteran inasmuch as nothing indicates that this clinical history was premised upon a review of the record. In this regard, the Board notes that in the reopening context the full credibility of new evidence is assumed, if it is not inherently false, untrue, or patently incredible, but the full weight of such evidence is not assumed. Evans v. Brown, 9 Vet. App. 273, 283-84 (1996). Here, for the reasons explained the Board finds that Veteran's testimony that multiple sclerosis was first diagnosed in 1980 and the history she related in 2000 that it was diagnosed in 1983 to be inherently untrue. However, the Board points out that it is not finding that the Veteran had been intentionally untruthful. Rather, from the record, and as discussed in that portion of this decision addressing her competency, the Veteran's recollection of remote events has, unfortunately, been distorted due to her nonservice-connected psychiatric disorder. Accordingly, the Board finds that the addition evidence which is new is not relevant and material to the claims for service connection for multiple sclerosis and Devic's disease and is not so significant that it must be considered in order to fairly decide the merits of the claims. Thus, the application to reopen those claims must be denied. Temporary Total Ratings The Veteran's service-connected disabilities are: pelvic inflammatory disease (PID) with removal of her uterus and both ovaries, rated 10 percent disabling since November 12, 1976; 30 percent since June 1, 1981; 100 percent (under a temporary total rating based on convalescence from November 3, 1997); and resumption of a 50 percent schedular rating since March 1, 1998. Her only other service-connected disability is herpes simplex rated noncompensably disabling since March 12, 2001. Temporary Total Rating Based on Hospitalizations in Excess of 21 days A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. 38 C.F.R. § 4.29(b). Temporary Total Rating Based on Need for Convalescence Following Past Hospitalizations A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. 38 C.F.R. § 4.30. 38 C.F.R. § 4.30(a) provides that a total rating will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989.). (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.) (3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.) Analysis In this case, the Veteran did not appeal the prior RO determinations as to entitlement to a temporary total rating based on either hospitalization in excess of 21 days for a service-connected disorder, under 38 C.F.R. § 4.29, or based on need for convalescence following surgery or immobilization by cast without surgery, under 38 C.F.R. § 4.30. A rating decision of a VA RO is final if it is not appealed within one year. 38 C.F.R. §§ 3.104, 3.160, 20.302. "There is no section in [38 U.S.C.] creates a procedure for making a freestanding challenge to the finality of a prior decision. Accordingly, an attack on a final decision must be raised through a valid procedure." DiCarlo v. Nicholson, 20 Vet. App. 52, 57 (2006). There are exceptions to the rule of finality, such as under 38 C.F.R. § 3.156(b), 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 that was pending at the beginning of the appeal period. Under 38 C.F.R. § 3.156(c) the receipt of additional relevant service records will be cause to reconsider a prior rating decision denying a service connection claim. Here, however, not additional service records were received and no new and relevant VA clinical records were received within one year of the prior rating decisions. Thus, those prior rating decisions are final unless there was clear and unmistakable error (CUE) therein. 38 C.F.R. § 3.105(a). In this case there is no allegation of CUE in any prior rating decision addressing entitlement to a temporary total rating based on either hospitalization in excess of 21 days for a service-connected disorder, under 38 C.F.R. § 4.29, or based on need for convalescence following surgery or immobilization by cast without surgery, under 38 C.F.R. § 4.30. Accordingly, the Veteran may not now seek to undo the prior final rating decisions. ORDER The Veteran is incompetent for VA purposes and entitlement to restoration of competency is denied. New and material evidence not having been received, the applications to reopen claims for service connection for multiple sclerosis and for Devic's disease (neuromyelitis optica) are denied. Entitlement to a temporary total rating based on hospitalizations in excess of 21 days is denied. Entitlement to a temporary total rating based on need for convalescence following past hospitalizations is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs