Citation Nr: 20022435 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 19-02 827A DATE: March 31, 2020 ORDER New and material evidence having not been received, the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is not reopened. New and material evidence having not been received, the Veteran’s claim for entitlement to service connection for right leg circulation problems is not reopened. New and material evidence having not been received, the Veteran’s claim for entitlement to service connection for bilateral hearing loss is not reopened. New and material evidence having not been received, the Veteran’s claim for entitlement to service connection for tinnitus is not reopened. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for high blood pressure is reopened. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for a heart attack is reopened. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for hypertension claimed as high blood pressure is remanded. Entitlement to service connection for heart disease claimed as a heart attack is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for stroke residuals is remanded. FINDINGS OF FACT 1. Claims for service connection for PTSD and right leg circulation problem were denied by the RO in October 2014 and February 2017; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of these rating decisions, and evidence obtained since the last final denial in February 2017 does not raise a reasonable possibility of substantiating the claims. 2. Claims for service connection for hearing loss and tinnitus were denied by the RO in May 2016 and February 2017; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of these rating decisions, and evidence obtained since the last final denial in February 2017 does not raise a reasonable possibility of substantiating the claims. 3. The evidence received since the last final denial of service connection for a heart attack, in October 2014 is new and relates to the basis for the prior final denials. 4. The evidence received since the last final denial of service connection for high blood pressure, in October 2014 is new and relates to the basis for the prior final denials. 5. The Veteran is not shown to have a current left shoulder disorder. 6. The Veteran is not shown to have sleep apnea. CONCLUSIONS OF LAW 1. New and material evidence has not been received and the claim for service connection for an acquired psychiatric disorder to include PTSD is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 2. New and material evidence has not been received and the claim for service connection for right leg circulation problems is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 3. New and material evidence has not been received and the claim for service connection for hearing loss is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 4. New and material evidence has not been received and the claim for service connection for tinnitus is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 5. Evidence received since a final October 2014 rating decision denying service connection for a heart attack is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 6. Evidence received since a final October 2014 rating decision denying service connection for high blood pressure is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103. 7. The criteria for service for left shoulder disorder are not met. 38 U.S.C. §§ 101(21), (24), 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303. 8. The criteria for service for sleep apnea are not met. 38 U.S.C. §§ 101(21), (24), 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1978 to April 1981. He also had multiple periods of active duty training (ADT) and inactive duty training (IDT) with the Army National Guard beginning in 1998. The Veteran retired from the National Guard in 2016. The Board acknowledges the general contention by the Veteran and his attorney that VA did not properly assess military and medical records. See March 2018 NOD and February 2019 substantive appeal. This is not responsive to the issues on appeal and the Veteran’s attorney is reminded that it is a claimant’s responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact or law. See 38 U.S.C. §§ 5107 (a), 7105(d)(5). Counsel are expected to present arguments they deem material and relevant to their clients’ cases. See Barela v. Peake, 22 Vet. App. 155, 159 (2008) (noting that an attorney has the ethical duty to educate himself about the relevant law, analyze the factual and legal elements of a case, adequately prepare, and zealously represent his client’s interest); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Moreover, in response to that contention, all the evidence in the Veteran’s claims file has been thoroughly reviewed. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). New and Material Evidence The Veteran seeks to reopen previously denied claims for service connection for an acquired psychiatric disorder to include PTSD, right leg circulation problems, hearing loss, tinnitus, a heart attack, and high blood pressure. Generally, a claim denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is 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. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to reopen properly a service-connection claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously denied claim. 1. PTSD In October 2014, the RO denied service connection for PTSD on the basis that a current diagnosis for that disorder was not shown. This rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In a February 2017, rating decision, the RO reopened the claim, but denied service connection on the basis that there was no evidence of a PTSD diagnosis or clinical diagnosis of any psychiatric disorder. This rating decision also became final as no notice of disagreement or new and material evidence was submitted within one year of the dates on which it was issued. Id. The February 2017 rating action is the last final denial as to this issue on any basis before the present attempt to reopen the claim. The relevant evidence of record in February 2017 includes statements wherein the Veteran provided an account of stressful in-service events; service and post-service treatment records which are negative for a psychiatric disorder; and a January 2017 VA examination report which shows the Veteran did not meet the criteria for a diagnosis of PTSD or any other mental disorder. Since then additional VA treatment records do not show a psychiatric condition, including PTSD on any “problem lists” and “medication lists” do not include any of the commonly prescribed medications used to treat psychiatric disorders. Therefore, the record is still absent for a current psychiatric diagnosis. Shade, 24 Vet. App. at 117. Because new and material evidence has not been received, the Veteran’s claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. right leg circulation problems In October 2014, the RO denied service connection for poor circulation of the right leg on the basis that the condition was not incurred in in or caused by service. This rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond, 659 F.3d at 1362; see also Buie, 24 Vet. App. at 251-52. In a February 2017, rating decision, the RO affirmed the denial of service connection on the basis that new and material evidence had not been submitted to reopen the claim. This rating decision also became final as no notice of disagreement or new and material evidence was submitted within one year of the dates on which it was issued. Id. The February 2017 rating action is the last final denial as to this issue on any basis before the present attempt to reopen the claim. The relevant evidence of record in February 2017 includes a January 2008 post-deployment health assessment where the Veteran reported heaviness in the leg and feet; a December 2008 VA outpatient treatment record which shows an arterial doppler confirmed peripheral artery disease in the right leg; and National Guard service records which show the Veteran was placed on temporary physical profiles for right leg circulation problems. Evidence added to the record since then include additional VA treatment records which confirm the Veteran has peripheral artery disease of the right leg and continues to receive treatment for it, but do not offer any probative evidence of a nexus to service. Cornele v. Brown, 6 Vet. App. 59, 62 (1993). See also Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran’s current condition are not material to issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence). In other words, there is no probative evidence, such as a medical opinion linking his peripheral artery disease with service. Shade, 24 Vet. App. at 117. Because new and material evidence has not been received, the Veteran’s claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. hearing loss 4. tinnitus In a May 2016, rating decision, the RO denied service connection for hearing loss and tinnitus on the basis that there was no evidence that either disorder occurred in or was caused by service. In a February 2017, rating decision, the RO confirmed and continued the denials. The May 2016 decision became final as no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond, 659 F.3d at 1362; see also Buie, 24 Vet. App. at 251-52. The May 2016 rating action was the last final denial as to both issues on any basis before the present attempt to reopen the claims. The relevant evidence of record in May 2016 consists of service treatment records from the Veteran’s period of active service from 1978 and 1981 which are negative for hearing loss or tinnitus; National Guard records which show the Veteran was routinely exposed to noise and placed on physical profile for hearing loss; and a May 2016 medical opinion from a VA audiologist who concluded there was no clear nexus between the Veteran’s current hearing loss and tinnitus and his military service. Evidence added to the record since then include additional VA treatment records which while new, do not discuss the Veteran’s hearing loss or tinnitus. In other words, the evidence associated with the claims file after the final May 2016 rating decision is either cumulative, or unrelated to the claims. Shade, 24 Vet. App. at 117. Consequently, there is no new and material evidence indicating the Veteran’s hearing loss and tinnitus began during or is related to a qualifying period of military service. Because new and material evidence has not been received, the Veteran’s hearing loss and tinnitus claims are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. high blood pressure/hypertension 6. CAD In an October 2014, rating decision, the RO denied service connection for a heart attack and high blood pressure on the basis that neither condition was incurred in nor caused by service. This rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see Bond, 659 F.3d at 1362; see also Buie, 24 Vet. App. at 251-52. This rating action was the last final denial as to this issue on any basis before the present attempt to reopen the claims. The relevant evidence of record in October 2014 included service treatment records from his period of active duty from 1978 to 1981, which are negative for a cardiovascular disorder or high blood pressure; private outpatient treatment records show the Veteran had a myocardial infarction and underwent cardiac catheterization in January 2002; and VA outpatient treatment records from 2014 which show diagnoses of hypertension and coronary artery disease. Evidence received since then consist of National Guard records which include a January 2008 post-deployment health assessment where the Veteran reported chest pain/pressure; VA treatment records which show that in December 2008 he underwent a cardiology consult for clearance for National Guard Duty; other National Guard records which show he was placed on physical profiles for history of stroke, history of heart attack, multi-vessel vascular disease and congestive heart failure. This evidence is new to the record and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. The claims are reopened. Service Connection The Veteran seeks service connection for a left shoulder disorder and sleep apnea on the basis of his service with the Army National Guard. However, he has not identified a specific injury or instance of medical attention for left shoulder problems or sleep impairment during this service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). “Active service” includes active duty, a period of ADT in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of IDT in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21), (24)(B); 38 C.F.R. § 3.6(a). See also Brooks v. Brown, 5 Vet. App. 484 (1994). ADT includes full-time duty performed for training purposes by members of the Reserves or National Guard. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6 (c). IDT is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of ADT, while weekend drills are IDT. Because the Veteran is alleging that he has injuries or diseases incurred or aggravated during periods of ADT and IDT with the National Guard, he must first establish “veteran” status with respect to those periods of service and establish that she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ADT or disabled from an injury incurred or aggravated in the line of duty during a period of IDT service. 38 C.F.R. § 3.1(a),(d); Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013); Harris v. West, 13 Vet. App. 509 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). Service connection may be granted for any disease initially 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 7. left shoulder disorder Although the Veteran claims to have a left shoulder disorder, the primary impediment to a grant of service connection is the absence of a current disability. Service treatment records from his period of active duty from April 1968 to April 1981 are negative for any significant signs or symptoms that can be construed as related to a chronic left shoulder problem. As such, there is no evidence of a left shoulder disorder during this period of service. Likewise, records from National Guard service show the Veteran did not indicate any specific left shoulder complaints and there is no evidence to support an in-service injury or left shoulder diagnosis. The post-service record shows the Veteran was evaluated for complaints of left shoulder pain beginning in 2016 soon after leaving the National Guard. While the VA examiner suspected arthritis, X-rays of the left shoulder were negative. The remaining records show continued evaluation of the left shoulder, treated conservatively with analgesic cream and Tylenol, but show no objective physical or radiological findings to support a diagnosis. See outpatient treatment records from Memphis South VA Clinic. Since service and post-service treatment records provide no basis to grant the claim, and in fact provide evidence against it, the Board finds no basis to obtain a VA examination or medical opinion. Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (holding that VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). To this point the Board notes that, the only evidence that relates the Veteran’s claimed left shoulder disorder to service are his own conclusory lay assertions, which alone are not sufficient to render a VA examination or opinion necessary and do not trigger VA’s duty to obtain a medical opinion to decide the claim. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a claimant’s mere conclusory generalized statement that a service illness caused his present medical problems is not sufficient to entitle him to a medical examination). The weight of the evidence reflects that there are no objective findings to support a current left shoulder disorder to include a showing of chronic functional impairment. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the VA’s and the Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). So, without competent evidence of a current disability, service connection cannot be awarded. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). While left shoulder pain has been noted, there is no evidence showing that it results in any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). 8. sleep apnea Although the Veteran claims to have sleep apnea, the primary impediment to a grant of service connection is the absence of a current disability. Service treatment records fail to reveal any signs or symptoms suggestive of sleep apnea. As such, there is no evidence of sleep apnea during this period of service. Likewise, records from National Guard service show the Veteran do not indicate any complaints or findings suggestive of a chronic sleep disorder including specific complaints of disordered sleep, snoring, shortness of breath, fatigue, excessive daytime sleepiness, or other signs indicative of sleep apnea. There is also no objective evidence that the Veteran was diagnosed as having sleep apnea in the immediate years after his National Guard service. The post-service record shows that no sleep study was found in the Veteran’s medical records and sleep apnea is not included on any “problem lists”. The weight of the evidence reflects there are no objective findings to support a current diagnosis of sleep apnea. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Brammer, 3 Vet. App. at 223; Degmetich, 104 F.3d at 1328; Gilpin, 155 F.3d at 1353; Rabideau, 2 Vet. App. at 141. So, without competent evidence of a current disorder, service connection cannot be awarded. The Board is sympathetic to the Veteran’s claims and recognizes that he served in the Army National Guard for many years. However, National Guard service by itself is insufficient to establish a claim for service connection. As there is no competent evidence of sleep apnea or current left shoulder disorder, to include a showing of chronic functional impairment, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). REASONS FOR REMAND 9. hypertension/high blood pressure 10. heart disease, including myocardial infarction (claimed as a heart attack) 11. stroke residuals 12. GERD The Veteran is seeking entitlement to service connection for high blood pressure, heart disease, a stroke, and GERD based on his service with the Army National Guard. The claims file shows that on January 10, 2002, the Veteran underwent cardiac catheterization for a myocardial infarction. Private treatment records at that time also document diagnoses of hypertension and gastritis. See clinical records from Methodist Healthcare Duckworth Pathology Group, Inc. The record also include a January 2008 post-deployment health assessment from the Veteran’s National Guard service where he reported chest pain/pressure. Subsequent National Guard records show the Veteran was placed on physical profiles for history of stroke, history of heart attack, multi-vessel vascular disease and congestive heart failure. The record also contains sufficient supporting evidence that the Veteran was on ADT or Active Duty for Special Work in January 2008. See January 2014 Army National Guard Retirement Points Statement, Soldier Detail Report. For VA compensation purposes, a veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence demonstrates that the injury or disease preexisted and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.306(b). It appears that there is no entrance examination of record prior to the period of ADT or Active Duty for Special Work in January 2008 and the Veteran has not established any service-connected disability for this period of service. Therefore, neither the presumption of soundness nor the presumption of aggravation is applicable. Hill v. McDonald, 28 Vet. App. 243, 250 (2016) (citing Donnellan, 24 Vet. App. at 171, and Smith, 24 Vet. App. at 48). Here, the record clearly reflects that the Veteran’s coronary artery disease, hypertension, gastritis, and stroke existed prior to a period of ADT or Active Duty for Special Work in January 2008. However, there is no medical opinion that addresses whether these preexisting conditions were aggravated by this period of service. Therefore, VA examination and medical opinion are needed. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Obtain any pertinent clinical records, both VA and non-VA, pertaining to treatment of the Veteran that are not already in the claims file. 2. Schedule the Veteran for appropriate VA examinations. All indicated tests and studies should be performed, and the examiner must review the results of any testing prior to completing the report. The examiner should discuss the pertinent evidence in the service treatment records, post service medical records, as well as the lay evidence provided by the Veteran and review the dates of service as compiled in the January 2014 Army National Guard Retirement Points Statement, Soldier Detail Report. The examiner should then provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s preexisting coronary artery disease, hypertension, stroke and gastritis underwent an increase in severity during or as a result of the Veteran’s period of ADT in January 2008. The examiner should indicate whether the physical profiles during National Guard service represent a permanent worsening of the coronary artery disease, hypertension, stroke and gastritis beyond the normal progression. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.