Citation Nr: 20002189 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-03 226 DATE: January 9, 2020 ORDER The application to reopen the claim of entitlement to service connection for a back disorder is granted. Entitlement to service connection for a back disorder is denied. The application to reopen the claim of entitlement to service connection for an anxiety disorder is granted. The application to reopen the claim of entitlement to service connection for multiple sclerosis is denied. The application to reopen the claim of entitlement to service connection for a right foot disorder is denied. The application to reopen the claim of entitlement to service connection for a leg condition previously claimed as gait impairment is denied. Entitlement to service connection for blood clots of the lower extremities is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected hearing loss and tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hearing loss and tinnitus is remanded. FINDINGS OF FACT 1. The RO denied service connection for a back disorder in a February 1982 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 2. The evidence received since the February 1982 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for a back disorder. 3. A back disorder did not manifest in service and arthritis was not manifest within one year. A back disorder is unrelated to service. 4. The RO denied service connection for an anxiety disorder in a September 2014 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 5. The evidence received since the September 2014 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for an anxiety disorder. 6. The RO denied service connection for multiple sclerosis in a September 2014 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 7. Specific to the application to reopen a compensation claim for multiple sclerosis, evidence received since the September 2014 rating decision is cumulative and redundant. 8. The RO denied service connection for a right foot disorder in a July 1963 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 9. Specific to the application to reopen a compensation claim for a right foot disorder, evidence received since the July 1963 rating decision is cumulative and redundant. 10. The RO denied service connection for a leg disorder (claimed as gait impairment) in a September 2014 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 11. Specific to the application to reopen a compensation claim for a leg disorder, evidence received since the September 2014 rating decision is cumulative and redundant. 12. Blood clots of the lower extremities did not manifest in service and are unrelated to service. CONCLUSIONS OF LAW 1. The February 1982 rating decision denying service connection for a back disorder is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. A back disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. § § 3.303. 3.307, 3.309 (2019). 3. The September 2014 rating decision denying service connection for an anxiety disorder is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The September 2014 rating decision denying service connection for multiple sclerosis is final. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for multiple sclerosis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 5. The July 1963 rating decision denying service connection for a right foot disorder is final. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for a right foot disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 6. The September 2014 rating decision denying service connection for a leg disorder (claimed as gait impairment) is final. New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for a leg disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 7. Blood clots of the lower extremities were not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to February 1961. In his Form 9 Substantive Appeal, the Veteran requested a Travel Board hearing. In December 2018, the Veteran withdrew his request for a hearing. Service Connection 1. The application to reopen the claim of entitlement to service connection for a back disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In a February 1982 rating decision, the RO denied service connection for a back disorder. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the February 1982 rating decision, the RO considered the claim and service medical records, among other evidence. The RO denied the claim on the basis that medical evidence did not show a nexus between a current back disability and active service. The RO specifically referenced the lack of evidence of continuity of symptoms since the documented treatment for in-service backache. Since the February 1982 rating decision, the Veteran has asserted a continuity of symptoms and VA afforded him a back examination to determine the etiology of his claimed disorder. As such, this evidence goes to cure a prior evidentiary defect which was not previously substantiated in the February 1982 rating decision. Hence, this evidence is not cumulative. Accordingly, reopening of the claim of service connection for a back disorder is warranted. 2. Entitlement to service connection for a back disorder Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Relevant here, arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). The Veteran contends that his back disorder is directly related to his service. Service treatment records document October 1959 treatment for backache, along with an upper respiratory infection. There are not any additional relevant complaints, treatment, symptoms, or diagnoses. Clinical evaluation of the spine and musculoskeletal system were normal at the Veteran’s January 1961 separation examination. At a June 2017 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine, spinal stenosis, and intervertebral disc syndrome. The Veteran reported that symptoms began in 1960 while working as an accounting finance/military pay clerk and carrying boxes of key cards and other items. In the accompanying medical opinion, the VA examiner concluded that the Veteran’s back disorders were less likely than not related to service. The examiner referenced the treatment for a “backache,” but noted that no formal diagnosis was provided. The examiner concluded that the current disorders were degenerative in nature and unrelated to service, to include the single notation of treatment for backache. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the June 2017 VA examiner’s opinion that the Veteran’s back disorders are less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertions. With respect to the Veteran’s report that he has experienced a continuity of symptoms since service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a relevant diagnosis during service or immediately thereafter. Id. The Veteran’s lay evidence of onset and continuity is far less probative than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. This includes clinical evaluation upon separation documenting the spine and musculoskeletal system as normal. There is no reliable evidence linking the Veteran’s back disorders to service. The contemporaneous records establish that there were no documented manifestations of a relevant chronic disorder in service, there were no manifestations of arthritis within one year of separation, and arthritis, stenosis, and IVDS were first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity, and treatment. Here, chronic disease (arthritis) of the spine was not “noted” during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran’s reported and documented history of in-service events, it finds that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Rather, despite the Veteran’s reports and the documentation of treatment for back pain in service, the evidence does not establish the presence of a chronic disability in service. Furthermore, the evidence does not establish that arthritis of the spine was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. The evidence of record shows that arthritis was manifest many years after service. The Veteran was not shown to have arthritis, or any relevant medically chronic disorder in service, and did not have characteristic manifestations of such disorders until multiple years after discharge. In summary, the evidence establishes that the spine was normal upon separation from service and the onset of arthritis occurred many years after service. The Board finds that the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the lay statements of the Veteran. The Board also finds the VA examiner’s opinion to be of significant probative value. The more probative evidence establishes that the Veteran did not have a chronic spine or back disorder during service or within one year of separation. Furthermore, the evidence establishes that the remote onset of the current disorders is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. With respect to the Veteran’s assertion in his Notice of Disagreement that he was previously service connected for a back disorder, the Board notes the August 1981 letter for the San Francisco RO apparently reporting the award of service connection for a leg and back condition. However, a subsequent January 1982 letter from VA informed the Veteran that the letter was sent in error and he was not service-connected for those disorders. 3. The application to reopen the claim of entitlement to service connection for an anxiety disorder In a September 2014 rating decision, the RO denied service connection for severe anxiety attacks. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the September 2014 rating decision, the RO considered the claim, service medical records, and VA treatment records, among other evidence. The RO denied the claim on the basis that the evidence did not show an in-service incurrence or a nexus between the claimed anxiety disorder and active service. Subsequent to the September 2014 rating decision, the Veteran was granted compensation for tinnitus and hearing loss. He asserts that his claimed anxiety disorder is secondary to these now service-connected disorders under section 3.310. As such, this evidence goes to cure a prior evidentiary defect which was not previously substantiated in the September 2014 rating decision. Hence, this evidence is not cumulative. Accordingly, reopening of the claim of service connection for an anxiety disorder is warranted. 4. The application to reopen the claim of entitlement to service connection for multiple sclerosis The Veteran’s compensation claim for multiple sclerosis was originally denied in a September 2014 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the September 2014 rating decision, the RO considered the claim, service medical records, and VA treatment records, among other evidence. The RO denied the claim on the basis that evidence did not show an in-service incurrence or a nexus between the Veteran’s multiple sclerosis and his active service. Since the September 2014 rating decision, the Veteran has provided no evidence beyond bare assertions that his MS began during service. This is consistent with his assertions prior to the September 2014 rating decision. Thus, the evidence submitted with respect to an in-service incurrence or nexus is duplicative. The Veteran has not submitted any new evidence regarding an in-service incurrence or potential nexus between MS and his service. The evidence submitted by the Veteran is not new and material. 38 C.F.R. § 3.156 (a). The evidence does not cure a prior evidentiary defect, e.g., evidence of in-service incurrence or a nexus between MS and active service, which was not previously substantiated in the September 2014 rating decision. Rather, the Veteran has provided only duplicative assertions of in-service symptoms and that his MS is related to service. Furthermore, there is no evidence that MS onset within one year of separation. 38 C.F.R. § 3.309 (a). As a result, the application to reopen the Veteran’s service connection claim for MS must be denied. 5. The application to reopen the claim of entitlement to service connection for a right foot disorder The Veteran’s compensation claim for a right foot disorder was originally denied in a July 1963 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the July 1963 rating decision, the RO considered the claim, service medical records, and an examination, among other evidence. The RO denied the claim (specifically residuals cellulitis right foot) on the basis that evidence did not show the presence of a chronic disability during service or a nexus between the Veteran’s disorder and his active service (acknowledging in-service treatment for cellulitis of the right foot). Since the July 1963 rating decision, the Veteran has only reasserted that his right foot disorder is secondary to the in-service treatment for cellulitis that was addressed in the July 1963 rating decision. These assertions are duplicative. The Veteran has not submitted any evidence regarding a medically chronic in-service disorder or a potential nexus between the Veteran’s claimed disorder and his service. The evidence submitted by the Veteran is not new and material. 38 C.F.R. § 3.156 (a). The evidence does not cure a prior evidentiary defect, e.g., evidence of a chronic in-service disorder or a nexus between a current disability and active service, which was not previously substantiated in the July 1963 rating decision. Rather, the Veteran has provided only duplicative assertions that his right foot disorder is related to an in-service cellulitis. As a result, the application to reopen the Veteran’s service connection claim for a right foot disorder must be denied. With respect to the Veteran’s assertion in his Notice of Disagreement that he was previously service connected for a right foot disorder, the Board notes the August 1981 letter for the San Francisco RO apparently reporting the award of service connection for a leg and back condition. However, a subsequent January 1982 letter from VA informed the Veteran that the letter was sent in error and he was not service-connected for those disorders. 6. The application to reopen the claim of entitlement to service connection for a leg condition previously claimed as gait impairment The Veteran’s compensation claim for a gait impairment (claimed as trouble walking) was originally denied in a September 2014 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one-year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the September 2014 rating decision, the RO considered the claim and service medical records, among other evidence. The RO denied the claim on the basis that evidence did not show an in-service incurrence or a nexus between the Veteran’s claimed disorder and his active service. Since the September 2014 rating decision, the Veteran has provided general assertions that his leg condition is related to his claimed blood clots and right foot disorder (for which service connection is not awarded). He has provided no other evidence. The Veteran has not submitted any evidence regarding an in-service incurrence or a potential nexus between his claimed leg disorder and service. The evidence submitted by the Veteran is not new and material. 38 C.F.R. § 3.156 (a). The evidence does not cure a prior evidentiary defect, e.g., evidence of an in-service incurrence or a nexus between a current disability and active service, which was not previously substantiated in the September 2014 rating decision. Rather, the Veteran has provided only bare assertions that his claimed disorder is secondary to non-service-connected disorders. As a result, the application to reopen the Veteran’s service connection claim for a leg disorder must be denied. 7. Entitlement to service connection for blood clots of the lower extremities The Veteran asserts that he has blood clots in his lower extremities due to service. He asserts that he developed blood clots as a result of his work shoes not fitting correctly. A review of service treatment records shows October 1959 treatment for cellulitis in the foot. There are no other relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of blood clots or a relevant condition. Clinical evaluation at the January 1961 separation examination revealed normal feet, lower extremities, skin, and vascular system. Service treatment records include a request for the records at Lackland Air Force Base as noted by the Veteran. The contemporaneous records establish that to the degree that the Veteran has blood clots in the lower extremities, they first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion of continuity and treatment. Of particular importance is the normal clinical evaluation upon separation and the lack of any evidence of blood clots in service. The more probative evidence establishes that he did not have blood clots during service. Furthermore, the evidence establishes that the remote onset of blood clots of the lower extremities (to the extent that the Veteran has blood clots) is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. The Board recognizes that the Veteran was not afforded a VA examination. However, no examination is necessary for the adjudication of the claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, while there is competent evidence of a potentially relevant in-service incurrence (cellulitis), the Board finds that it amounts to a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current claimed condition, and thus it is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In other words, the Board finds that it is unnecessary to require the Veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran’s claim. See McClendon. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to service-connected hearing loss and tinnitus is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hearing loss and tinnitus is remanded. Pursuant to the holding in Clemmons v. Shinseki, 23 Vet. App. 1 (2009) and the evidence of record, the Board has consolidated the Veteran’s compensation claims for various acquired psychiatric disorders. The Veteran asserts that his claimed headache disorder and acquired psychiatric disorder are secondary to service-connected hearing loss and tinnitus under the provisions of section 3.310. The Board finds that an examination is warranted. See McLendon, supra. The matters are REMANDED for the following action: 1. Contact the Veteran requesting any relevant private treatment records, or authorization to obtain such records. 2. Obtain any updated VA treatment records. 3. Schedule the Veteran for a VA examination to determine the etiology of the claimed headaches. If the Veteran is unable to attend the examination due to his health, obtain a medical opinion. Based on a review of the record, the examiner should: (a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that headaches are related to the Veteran’s active service. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that headaches were caused by, or were aggravated by service-connected hearing loss or tinnitus. If hearing loss or tinnitus aggravates headaches, the examiner should identify the percentage of disability which is attributable to the aggravation. 38 C.F.R. § 3.310. A complete rationale for any opinion expressed should be provided in a report. 4. Schedule the Veteran for a VA examination to determine the etiology of the claimed psychiatric disorder. If the Veteran is unable to attend the examination due to his health, obtain a medical opinion. Based on a review of the record, the examiner should: (a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that an acquired psychiatric disorder was related to the Veteran’s active service. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that an acquired psychiatric disorder was caused by, or was aggravated by service-connected hearing loss or tinnitus. If hearing loss or tinnitus aggravates an acquired psychiatric disorder, the examiner should identify the percentage of disability which is attributable to the aggravation. 38 C.F.R. § 3.310. A complete rationale for any opinion expressed should be provided in a report. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.