Citation Nr: 20021868 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-55 240 DATE: March 27, 2020 ORDER New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for a right hip disability is denied. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for a low back disability is denied. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for a right shoulder disability is denied. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for residuals of left wrist tumor disability is denied. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for residuals of left and right inguinal hernia disability is denied. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for residuals of an umbilical hernia disability is denied. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for bilateral knee conditions is denied. Entitlement to service connection for an adjustment disorder is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to higher initial staged ratings for bilateral hearing loss, rated as noncompensable prior to January 8, 2019 and 10 percent therefrom, is remanded. FINDINGS OF FACT 1. An October 2001 rating decision denied entitlement to service connection for right hip, low back, right shoulder, residuals of left wrist tumor, right and left knees, right and left inguinal hernia, and umbilical hernia disabilities; the Veteran did not timely appeal the denial, and new and material evidence was not received within the one-year appeal period following notice of the October 2001 rating decision. 2. Evidence received since the October 2001 rating decision related to the issues of entitlement to service connection for right hip, low back, right shoulder, residuals of left wrist tumor, bilateral knees, right and left inguinal hernia, and umbilical hernia disabilities is new, but is not material, and does not raise a reasonable possibility of substantiating any of these claims. 3. There is no competent evidence showing the Veteran has an adjustment disorder due to his military service. 4. The probative evidence of record does not show that it is at least as likely as not that the Veteran's current sleep apnea disability was incurred in or caused by service. CONCLUSIONS OF LAW 1. The October 2001 rating decision which denied entitlement to service connection for a right hip disability, a low back disability, a right shoulder disability, a left wrist tumor disability, left and right inguinal hernia disabilities, and an umbilical hernia disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having not been received, the claim for entitlement to service connection for a right hip disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence having not been received, the claim for entitlement to service connection for low back disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence having not been received, the claim for entitlement to service connection for right shoulder disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. New and material evidence having not been received, the claim for entitlement to service connection for left wrist tumor disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 6. New and material evidence having not been received, the claim for entitlement to service connection for left and right inguinal hernia disabilities is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 7. New and material evidence having not been received, the claim for entitlement to service connection for an umbilical hernia disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 8. New and material evidence having not been received, the claim for entitlement to service connection for bilateral knee conditions is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 9. The criteria for entitlement to service connection for an adjustment disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 10. The criteria for entitlement to service connection for a sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the National Guard from 1957 to 1991, with active service from July 1958 to July 1960, October 1961 to August 1962, and from January 1991 to July 1991. These matters come to the Board on appeal from an April 2015 Regional Office (RO) decision, except for the issue of entitlement to service connection for sleep apnea, which comes to the Board on appeal from a September 2015 RO decision. The Board notes that the Veteran’s appeal for entitlement to a higher disability rating for service-connected post-traumatic stress disorder (PTSD) was decided in a separate appellate decision, dated March 13, 2020. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. Although the RO chose to reopen some of these claims in the rating decision on appeal, it remains the Board’s obligation to determine whether they should be reopened. New evidence is existing evidence not previously considered by VA. Material evidence is 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 (a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, 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 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks at evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). 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). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for a right hip disability is denied. The RO denied service connection for a right hip disability (then claimed as the right gluteus muscle) in an October 2001 rating decision, due to the absence of a link between the Veteran’s painful hip and service. At that time, the Veteran alleged having injured his right hip while playing football in service while stationed in Europe. The Veteran did not file a notice of disagreement with the October 2001 rating decision on this issue, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2001 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final October 2001 rating decision includes VA treatment records showing continued complaints of pain in the right hip. This evidence is new in that it was not previously considered by VA. The Board notes that the Veteran’s allegations of right hip pain are redundant of his previous statements that were considered as part of the prior final denial. Thus, the evidence is not material as it merely confirms facts previously established and does not raise a reasonable possibility of substantiating the claim. Therefore, the medical treatment records are not considered new and material evidence as to the claim for entitlement to service connection for a right hip disability. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for a right hip disability has not been received, and the petition to reopen this claim is denied. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen this claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for a low back disability is denied. The October 2001 rating decision denied service connection for a low back disability, to include disc degeneration and radiculopathy, due to the absence of a link between the Veteran’s back disability and service. At that time, the Veteran alleged having injured his back while playing football in service while stationed in Europe. The Veteran did not file a notice of disagreement with the October 2001 rating decision on this issue, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2001 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final October 2001 rating decision includes VA treatment records showing continued complaints of low back pain and treatment for degenerative disc disease. This evidence is new in that it was not previously considered by VA. The Board notes that the Veteran’s allegations of back pain and treatment for degenerative arthritis are redundant of his previous statements and treatment that were considered as part of the prior final denial. Thus, the evidence is not material as it merely confirms facts previously established, the presence of a current disability, and does not raise a reasonable possibility of substantiating the claim. Therefore, the medical treatment records are not considered new and material evidence as to the claim for entitlement to service connection for a back disability. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for a low back disability has not been received, and the petition to reopen this claim is denied. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen this claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 3. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for a right shoulder disability is denied. The October 2001 rating decision denied service connection for a right shoulder disability due to the absence of a link between the Veteran’s shoulder arthritis and service. At that time, the Veteran alleged having injured his right shoulder when falling off a truck in 1980 and then reinjuring it in 1991. The Veteran did not file a notice of disagreement with the October 2001 rating decision on this issue, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2001 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final October 2001 rating decision includes VA treatment records showing continued complaints of right shoulder pain and treatment for arthritis. Notably, the Veteran underwent shoulder replacement surgery in June 2016. This evidence is new in that it was not previously considered by VA. The Board notes that the medical evidence of current treatment for his shoulder arthritis is redundant of his previous treatment for the same disability that was considered as part of the prior final denial. Thus, the evidence is not material as it merely confirms facts, the presence of a current disability, previously established and does not raise a reasonable possibility of substantiating the claim. Therefore, the medical treatment records are not considered new and material evidence as to the claim for entitlement to service connection for a right shoulder disability. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for a right shoulder disability has not been received, and the petition to reopen this claim is denied. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen this claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 4. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for residuals of left wrist tumor disability is denied. The October 2001 rating decision denied service connection for a left wrist tumor disability due to the absence of a link between an asymptomatic left wrist mass with onset in 1991 and a contusion of the wrist in service in 1959. The Veteran did not file a notice of disagreement with the October 2001 rating decision on this issue, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2001 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final October 2001 rating decision does not show complaints or treatment related to the left wrist. Medical treatment records show treatment for right wrist pain only. The record does contain a contention that the Veteran continues to have a disability related to any prior left wrist tumor. To the extent the Veteran contends he has a left wrist condition due to service, this lay evidence is new in that it was not previously considered by VA. However, the lay evidence is not material as it merely reiterates the Veteran’s contentions and does not raise a reasonable possibility of substantiating the claim. Therefore, the records are not considered new and material evidence as to the claim for entitlement to service connection for a left wrist tumor disability. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for a left wrist tumor disability has not been received, and the petition to reopen this claim is denied. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen this claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 5. New and material evidence having not been received, the appeal to reopen claims for entitlement to service connection for residuals of a left and right inguinal hernias and an umbilical hernia is denied. The October 2001 rating decision denied service connection for a left inguinal hernia disability, right inguinal hernia disability, and umbilical hernia disability due to the absence of a link between the Veteran’s hernia repair surgeries in 1996 and 1997 and his military service. At that time, the Veteran alleged that the hernias were due to playing football in service. The Veteran did not file a notice of disagreement with the October 2001 rating decision on these issues, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2001 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final October 2001 rating decision includes VA treatment records showing the Veteran stating that he must be careful lifting heavy objects due to his prior hernias. This evidence is new in that it was not previously considered by VA. The Board notes that this evidence, showing he had prior hernias and reports current residuals, is redundant of his previous symptoms/statements for the same disabilities that were considered as part of the prior final denial. Thus, the evidence is not material as it merely confirms facts, the presence of current disabilities, previously established and does not raise a reasonable possibility of substantiating the claims. Therefore, the medical treatment records are not considered new and material evidence as to the claims for entitlement to service connection for left inguinal hernia, right inguinal hernia, and umbilical hernia disability. Accordingly, new and material evidence to reopen the finally denied claims for entitlement to service connection for left inguinal hernia, right inguinal hernia, and umbilical hernia disabilities has not been received, and the petition to reopen this claim is denied. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen this claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 6. New and material evidence having not been received, the appeal to reopen a claim for entitlement to service connection for bilateral knee conditions is denied. The RO denied service connection for bilateral knee disabilities in an October 2001 rating decision, due to the absence of a link between the Veteran’s diagnosis of degenerative joint disease of both knees in 1998 and service. The Veteran did not file a notice of disagreement with the October 2001 rating decision on these issues, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2001 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final October 2001 rating decision includes VA treatment records showing continued diagnosis of degenerative joint disease of the knees, as well as the fact the Veteran has undergone surgical procedures for the knees. This evidence is new in that it was not previously considered by VA. The Board notes that the diagnosis of degenerative joint disease of the knees is redundant of the evidence previously of record, as a current disability had been shown at the time of the prior final denial. Thus, the evidence is not material as it merely confirms facts previously established and does not raise a reasonable possibility of substantiating the claim. Therefore, the medical treatment records are not considered new and material evidence as to the claim for entitlement to service connection for bilateral knee conditions. Accordingly, new and material evidence to reopen the finally denied claim for entitlement to service connection for bilateral knee conditions has not been received, and the petition to reopen this claim is denied. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen this claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection 7. Entitlement to service connection for an adjustment disorder is denied. The Veteran initially filed a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in June 2014. A VA psychiatric examiner in October 2014 determined that the Veteran did not meet the DSM requirements for a diagnosis of PTSD, but indicated that the Veteran most likely had a diagnosis of a “very mild adjustment disorder.” The examiner indicated that the condition could not be linked to his service. The RO then issued the April 2015 rating decision on appeal. In that decision, the RO characterized entitlement to service connection for PTSD and entitlement to service connection for an adjustment disorder as separate issues. The Veteran filed a timely notice of disagreement. The RO then scheduled the Veteran for another examination to clarify whether he had a diagnosis of PTSD since the medical records showed diagnosis of and treatment for PTSD from VA. The RO instructed the examiner to clarify whether the Veteran had a diagnosis of PTSD related to fear of hostile military activity in Saudi Arabia, and if more than one mental disorder is diagnosed, to comment on the relationship between them, and differentiate symptoms if possible. The Veteran attended the aforementioned VA examination in March 2018. The examiner opined that the Veteran met the diagnostic criteria for PTSD and noted the prior diagnosis of adjustment disorder. The examiner found that the Veteran only had a diagnosis of PTSD and no other mental health disorder. The examiner also noted that the Veteran had no other mental health symptoms attributable to another disorder. The Veteran was granted entitlement to service connection for PTSD in a March 2018 rating decision. VA then issued a December 2018 Statement of the Case continuing a denial of entitlement to service connection for an adjustment disorder, and the Veteran perfected an appeal with regard to all issues listed on the December 2018 Statement of the Case. As noted above, the Veteran is service-connected for PTSD, and this denial does not change that fact in any way. While VA’s regulations rate all psychiatric disabilities together, there is no prohibition against a veteran being service connected for more than one psychiatric disability. In particular, in Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), the Federal Circuit emphasized that "service connection" is available for different psychiatric disorders where there are different symptoms. The Board finds, however, that he is not entitled to service connection for an adjustment disorder. The VA examiner in 2014 opined the condition was not related to his military service, so there is no competent evidence suggesting the condition is related to his service in any way. The Veteran has not alleged any medical professional has ever opined he has an adjustment disorder (as opposed to the already service-connected PTSD) that is related to his service, and he does not possess the medical knowledge to make such a link himself. As such, the Board finds that the probative evidence of record does not show that it is at least as likely as not that the Veteran has an adjustment disorder that was incurred in or caused by service. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to service connection for sleep apnea is denied. The Veteran has obstructive sleep apnea, as established by a sleep study in February 2015. Thus, the first Shedden element, a current disability, has been met. The Veteran has not provided contentions as to the onset of his condition nor has he indicated a specific event in service that may have caused the condition. The record shows complaints of difficulty sleeping due to psychiatric symptoms such as sleeplessness, nightmares, and insomnia in service and after. However, the record does not show complaints of difficulty breathing while sleeping during service, or for many years after. The Veteran was not diagnosed with sleep apnea until 2015, many years after service. The Board acknowledges that the Veteran has not been provided a VA examination and opinion to determine the nature and etiology of his sleep apnea. The Board notes that under 38 U.S.C. § 5103A(d) (West 2014), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that an event, injury or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. Here, the Board does not find that the record contains evidence that an event occurred in service or that the condition had its onset in service. The Veteran's separation examinations and service treatment records are negative for complaints of non-psychiatric sleep problems in service. The Veteran denied shortness of breath in 1991 and 1992, and regularly indicated that he did not have difficulty sleeping. Medical treatment records contain no complaints of non-psychiatric sleep difficulty until 2015, many years after service. As such, the Board finds that further VA examination is not necessary. While the Veteran contends he has a current sleep apnea disability that is related to service, the record does not show an event happened in service to raise the possibility of a medical nexus. Further, the Veteran has not been shown to possess the medical expertise required to link his sleep apnea to service. As such, the Board finds that the probative evidence of record does not show that it is at least as likely as not that the Veteran's current sleep apnea disability was incurred in or caused by service. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to higher initial staged ratings for bilateral hearing loss is remanded. VA treatment records from May 2019 show that the Veteran underwent an audiological evaluation that showed moderately severe to severe pure tone thresholds. However, the actual audiological findings are not included in the medical record. On remand, the RO should obtain and associate these audiological findings, if they exist, with the record on appeal. The matters are REMANDED for the following action: Obtain the audiogram findings from the Veteran's VA audiological evaluation in May 2019. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, Associate 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.