Citation Nr: 20045600 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 18-12 975 DATE: July 8, 2020 ORDER The request to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is denied. The request to reopen a claim of entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for gallstones is denied. Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. An April 2012 decision reopened and confirmed a prior denial of service connection for an acquired psychiatric disorder; the Veteran did not perfect an appeal of the decision, no relevant evidence was received after the decision was issued, nor did VA become aware of the existence of new VA treatment within the remainder of the one year of the decision; this is the last final denial for this claim. 2. The evidence submitted since the April 2012 decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 3. A December 1959 rating decision denied service connection for residuals of a head injury; the Veteran did not appeal the decision , no relevant evidence was received after the decision was issued, nor did VA become aware of the existence of new VA treatment within the remainder of the one year of the decision; this is the last final denial for this claim. 4. The evidence submitted since the December 1959 rating decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a head injury. 5. The Veteran’s gallstones were not shown in service, did not manifest to a compensable degree within the applicable presumptive period, and are not otherwise etiologically related to an in-service injury or disease. 6. The Veteran served on active duty from June 1955 to April 1958; he is not shown to have had 90 days active service during a period of war. CONCLUSIONS OF LAW 1. The April 2012 decision, which reopened and confirmed a prior denial of service connection for an acquired psychiatric disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. The evidence received since the April 2012 decision, which reopened and confirmed a prior denial of service connection for an acquired psychiatric disorder, is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 3. The December 1959 rating decision, which denied service connection for residuals of a head injury, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 4. The evidence received since the December 1959 rating decision, which denied service connection for residuals of a head injury, is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 5. The criteria for service connection for gallstones are not met. 38 U.S.C. §§ 1131, 1133, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 6. The criteria for basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101, 1521 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1955 to April 1958. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a December 2015 rating decision, which determined that new and material evidence had been received sufficient to reopen a claim of entitlement to service connection for a left leg and ankle condition and then denied the claim on the merits; the issue was then certified to the Board. However, during the Veteran’s October 2019 Board hearing, it became clear that the Veteran is seeking entitlement to service connection for a left ankle disability. The Board has recharacterized this issue on appeal. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Acquired Psychiatric Disorder The Veteran seeks to reopen a previously denied claim for service connection for an acquired psychiatric disorder. By an April 2012 decision, the RO reopened and confirmed a prior denial of the claim of entitlement to service connection for schizophrenia on the basis that the record did not contain of evidence of an acquired psychiatric disorder in service or within the applicable presumptive period. There was also no evidence that the condition was related to the Veteran’s military service. The Veteran appealed the decision, and a statement of the case was issued in December 2013. However, the Veteran did not perfect the appeal by filing a timely VA Form 9. 38 C.F.R. § 20.302(b). No relevant evidence was submitted after the decision was issued or within the remainder of the one year of the date on which notice of the decision was issued. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). VA also did not become aware of the existence of new VA treatment within one year of the decision. Turner v. Shulkin, 29 Vet. App. 207 (2018). Accordingly, the April 2012 decision is final. 38 U.S.C. § 7105. Since the April 2012 decision, no new evidence has been added to the claim file that is material to this claim. Notably, there still is no probative evidence of an acquired psychiatric disorder in service or manifested within the year following his discharge from service. There is also no evidence that an acquired psychiatric disorder, diagnosed as schizophrenia, is related to the Veteran’s military service. While the evidence may be new (ncluding VA outpatient treatment records, private medical records, and testimony of the Veteran), it is not material as it does not raise a reasonable possibility of substantiating the claim. These records confirm the diagnosis and continued treatment of schizophrenia. They do not show that the first diagnosis of schizophrenia was within the one-year presumptive period. Moreover, these records, to include the Veteran’s testimony, continue to lack competent medical evidence that an acquired psychiatric disorder was related to the Veteran’s active military service. The new evidence does not relate to an unestablished fact necessary to substantiate the claim and is cumulative or redundant of evidence previously of record. Thus, the Board finds that new and material evidence has not been added to the record and that the claim for service connection for an acquired psychiatric disorder may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Residuals Of A Head Injury The Veteran seeks to reopen a previously denied claim of service connection for a head injury. By a December 1959 rating decision, the RO denied service connection for residuals of a head injury on the basis that the head injury claimed by the Veteran to have occurred during a parachute jump was not shown by the evidence of record, to include service treatment and post-service records. The Veteran did not appeal the decision. 38 C.F.R. § 20.302(a). No relevant evidence was submitted after the decision was issued or within the remainder of the one year of the date on which notice of the decision was issued. 38 C.F.R. § 3.156(b); see Bond, supra. VA also did not become aware of the existence of new VA treatment within one year of the decision. Turner, supra. Accordingly, the December 1959 rating decision is final. 38 U.S.C. § 7105. Since the December 1959 rating decision, no new evidence has been added to the claim file that is material to the Veteran’s claim. Notably, there still is no probative evidence of a head injury in service. While the evidence may be new (including VA outpatient treatment records, private medical records, and testimony of the Veteran), it is not material as it does not raise a reasonable possibility of substantiating the claim. These records still do not contain evidence of an in service head injury. The Board notes the Veteran’s testimony that he injured his head in a parachute jump is cumulative of his previous contentions considered by the RO at the time of the prior final disallowance of the claim. The new evidence does not relate to an unestablished fact necessary to substantiate the claim and is cumulative or redundant of evidence previously of record. Thus, the Board finds that new and material evidence has not been added to the record and that the claim of service connection for residuals of a head injury may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection—Gallstones The Veteran contends that his gallstones were the result of his military service. He has not set forth a specific incident of service incurrence. Certain chronic diseases, like calculi of the gallbladder, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In 2010, the Veteran was diagnosed with gallstones, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. At the Board hearing, the Veteran denied having problems with his gallbladder, to include gallstones, during his active service. See BVA Transcript at 8. He additionally testified that 2010 was the first time he had gallstones. Id. VA treatment records support the Veteran’s testimony that he was first diagnosed with gallstones in 2010 (December 2010), approximately 52 years after his separation from service and clearly outside of the applicable presumptive period. As noted above, the Veteran has not reported having experienced symptoms associated with gallstones during service, within the presumptive period, or consistently since service. Service connection for gallstones may still be granted on a direct basis. However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s gallstones and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board acknowledges that the Veteran has not been provided a VA examination and opinion to determine the nature and etiology of his gallstones. Pursuant to 38 U.S.C. § 5103A (d), 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. 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 Veteran did not contend that his condition started during service. Service treatment records are absent for complaints of gallstones, or related symptoms. The Veteran’s separation examination is marked normal for the genitourinary system. The medical evidence of record does not contain complaints of gallstones until 2010, many years after service. The Veteran himself confirmed the first onset of gallstones in 2010 during his Board hearing. Further, the record does not contain competent medical evidence that his gallstones are related to service. As such, the Board finds that VA examination is not necessary. The record does not show a basis for linking his gallstones to his service. Further, the Veteran has not been shown to possess the medical expertise required to link his gallstones 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 gallstones were 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); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nonservice-Connected Pension Benefits The question before the Board is whether the Veteran has established threshold eligibility for VA nonservice-connected pension benefits. In this regard, the Board notes that the law authorizes the payment of nonservice-connected disability pension to a Veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. §§ 1502, 1521. A veteran has met the necessary service requirements if he served in active military, naval, or air service under one of these conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3 (a). The term “period of war” means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress. 38 U.S.C. § 1501 (4); see 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. §§ 3.2, 3.3(a)(3) and (b)(4)(i). A review of the record reveals that the Veteran was on active duty from June 1955 to April 1958. The Korean Conflict ended January 1955, and the Vietnam Era did not begin until February 1961 at the earliest (in the case of a veteran who served in the Republic of Vietnam) and at the latest (e.g., in all other cases) in August 1964. Thus, his active service cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a non-service-connected pension. 38 U.S.C. § 101; 38 C.F.R. §§ 3.2, 3.6. As the Veteran did not have any qualifying wartime service, he does not meet the basic eligibility requirements for VA nonservice-connected pension benefits. In this case, the law is dispositive. Accordingly, his claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Service Connection—Left Ankle Disability The Board finds that the record shows the presence of a left ankle disability during the pendency of the appeal. The Veteran informed VA treatment providers in December 2015 that he injured his left ankle during an in-service parachute jump. The Veteran testified that he injured his left ankle during a parachute jump. The Veteran’s military personnel records reveal that he was awarded the Parachutist Badge. As such, the Board finds the record is sufficient to indicate that this condition may be related to service. As such, a VA medical opinion is necessary to determine whether it is at least as likely as not that the Veteran’s left ankle disability is related to service. McLendon, supra. This matter is REMANDED for the following action: 1. Forward the Veteran’s claims folder to an appropriate clinician for completion of a medical nexus opinion. The examiner should review the entire record and note such review. The examiner should then opine as to whether it is at least as likely as not (50 percent or greater probability) that any left ankle condition diagnosed during, or proximate to, the period on appeal, to include, but not limited to, degenerative osteophytes, was incurred in, or caused by, service. A complete rationale should accompany all conclusions reached. 2. Following any additional development deemed appropriate, readjudicate the issue remaining on appeal. In doing so, consider all relevant evidence added to the claims file since the most recent Statement of the Case. If any benefit sought is not granted, then the Veteran should be furnished with a Supplemental Statement of the Case, with copy and afforded an opportunity to respond before the record is returned to the Board for further review. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.