Citation Nr: 20047713 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 15-02 945 DATE: July 16, 2020 ORDER New and material evidence has not been received sufficient to reopen the claim for entitlement to service connection for hypertension, and the claim is denied. New and material evidence has not been received sufficient to reopen the claim for entitlement to service connection for rectal carcinoma, and the claim is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is denied. FINDINGS OF FACT 1. In a final September 2011 rating decision, the RO denied entitlement to service connection for hypertension; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final September 2011 rating decision is cumulative or redundant of the evidence of record, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for hypertension. 3. In a final September 2011 rating decision, the RO denied entitlement to service connection for rectal carcinoma; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 4. The evidence received since the final September 2011 rating decision is cumulative or redundant of the evidence of record, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for rectal carcinoma. 5. The preponderance of the evidence is against a finding that the Veteran’s back disability is etiologically related to an in-service injury, event, or disease. 6. The preponderance of the evidence is against a finding that the Veteran’s acquired psychiatric disorder is etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The September 2011 rating decision that denied the claim for service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2011 rating decision that denied the claim for service connection for rectal carcinoma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim for service connection for rectal carcinoma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in June 2018 for further development. The Veteran testified at a videoconference hearing before the undersigned in July 2017. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302 (a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117 – 18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. 1. Whether new and material evidence has been received sufficient to reopen the claim for service connection for hypertension. In the September 2011 rating decision, the RO denied the claim for service connection for hypertension because the evidence did not show that the Veteran’s hypertension was incurred in or caused by service, or manifested to a compensable degree within one year from separation from service. That decision is final. The Veteran did not file a timely NOD and new and material evidence was not received within one year of the September 2011 rating decision. The Board also acknowledges that if additional, pertinent service records are associated with the file, VA will reconsider the claim according to 38 C.F.R. § 3.156 (c). Here, service personnel records were added to the record after the September 2011 decision; however, these records are not pertinent to element missing at the time of the prior final rating decision, that is the onset of hypertension in service or otherwise related to the service element, but only re-confirms the fact that the Veteran served in the Republic of Vietnam, which was already verified at the time of the prior rating decision. Thus, the claim need not be reconsidered under 38 C.F.R. § 3.156 (c). Since the Veteran’s prior final denial in September 2011, the record includes lay statements, additional private and VA treatment records, military personnel records, and the July 2017 hearing testimony. These records do not show that the Veteran’s hypertension is related to his military service or manifested to a compensable degree with one year of separation of service. While the Veteran reported at the July 2017 hearing that his hypertension had been diagnosed in 1972, this is still not within one year of separation of service, which was in 1969. Thus, the Board finds that these records, while new, are cumulative and redundant of the evidence of record at the time of the last prior final decision. Further, the additional records do not relate to an unestablished fact and do not raise a reasonable possibility of substantiating the claim. Consequently, the claim may not be reopened, because no new and material evidence has been received suggesting that the Veteran’s hypertension is related to his military service. See Annoni v. Brown, 5 Vet. App. 463 (1993). 2. Whether new and material evidence has been received sufficient to reopen the claim for service connection for rectal carcinoma. In the September 2011 rating decision, the RO denied the claim for service connection for rectal carcinoma because the evidence did not show that the Veteran’s rectal carcinoma was incurred in or caused by service, or manifested to a compensable degree within one year from separation from service. That decision is final. The Veteran did not file a timely NOD and new and material evidence was not received within one year of the September 2011 rating decision. The Board also acknowledges that if additional, pertinent service records are associated with the file, VA will reconsider the claim according to 38 C.F.R. § 3.156 (c). Here, service personnel records were added to the record after the September 2011 decision; however, these records are not pertinent to element missing at the time of the prior final rating decision, that is the onset of rectal carcinoma in service or otherwise related to the service element, but only re-confirms the fact that the Veteran served in the Republic of Vietnam, which was already verified at the time of the prior rating decision. Thus, the claim need not be reconsidered under 38 C.F.R. § 3.156 (c). Since the Veteran’s prior final denial in September 2011, the record includes lay statements, additional private and VA treatment records, military personnel records, and the July 2017 hearing testimony. These records do not show that the Veteran’s rectal carcinoma is related to his military service, to include his in-service exposure to Agent Orange, or manifested to a compensable degree with one year of separation of service. While the Veteran now contends that his rectal carcinoma is due to his in-service exposure to Agent Orange, separate theories in support of a claim for a particular benefit are not equivalent to separate claims, and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). Indeed, mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim without evidence to support that particular theory, i.e., new and material evidence that raises a reasonable possibility of substantiating the claim. Roebuck, 20 Vet. App. at 307; Bingham v. Principi, 18 Vet. App. 470 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005). Thus, the Board finds that these records, while new, are cumulative and redundant of the evidence of record at the time of the last prior final decision. Further, the additional records do not relate to an unestablished fact and do not raise a reasonable possibility of substantiating the claim. Consequently, the claim may not be reopened, because no new and material evidence has been received suggesting that the Veteran’s rectal carcinoma is related to his military service. See Annoni v. Brown, 5 Vet. App. 463 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 - 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases a presumption of service connection arises if the disease is manifested to a compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic disabilities, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a disability was “noted” during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448 – 9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). 1. Entitlement to service connection for a back disability is denied. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a back disability is warranted. The evidence shows that the Veteran is currently diagnosed with degenerative disc disease and arthritis of the spine, lumbar spondylosis, lumbar spondylolisthesis, spinal stenosis, and intervertebral disc syndrome. As an initial matter, the evidence does not show that Veteran had a diagnosis of, treatment for, or complaint of a back disability during his active duty service. Additionally, the Veteran stated that he had back pain since falling out of the back of a truck when loading base camp because of an oncoming typhoon during service. He also stated that he received pain medications to treat it. The Board finds that the Veteran’s statements are outweighed by his contemporaneous service treatment records, which do not show any complaints, treatment, or diagnosis of a back disability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Further, even if the Veteran had fallen out of a truck during service, the earliest documentation of a back disability or complaints thereof is January 2007, approximately 38 years since separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). None of the medical evidence suggests that the Veteran’s current back disability is related to service. The evidence does not show any evidence that his arthritis manifested within one year of separation from service. Rather, the Veteran was noted to have degenerative changes of the spine in January 2007. Therefore, the Board finds that the Veteran is not entitled to service connection on a presumptive basis under either 38 C.F.R. § 3.307 (a)(3) or under 38 C.F.R. § 3.303 (b) for continuity of symptomatology. In an August 2019 VA examination report, the VA examiner opined that the Veteran’s back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The Board finds that the August 2019 VA examination is probative evidence as to the etiology of the Veteran’s back disability. The opinion was based on a thorough review of the Veteran’s medical records, consideration of his lay statements, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the persuasive evidence of record shows that the Veteran’s back disability did not have its onset during service, or was otherwise etiologically related to service. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for a back disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of back disabilities, to include arthritis, the issue of causation of such medical disabilities is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Board recognizes the Veteran’s lay assertions that his back disability was due to his military service, to include falling out of a truck in Vietnam, but finds that the Veteran is not competent to provide such a medically complex etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran’s lay assertions are not competent to provide a medical link between his back disability and military service. Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s back disability is related to his service, the Board has not uncovered any credible evidence which supports such a connection and the Veteran lacks the medical expertise to competently determine the etiology of his back disability. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a back disability. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is denied. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for an acquired psychiatric disorder is warranted. The evidence shows that the Veteran is currently diagnosed with depressive disorder. While VA treatment records show a positive screen for PTSD in May 2013, subsequent treatment records and the July 2013 VA examination clarify that the Veteran did not meet the full symptom criteria for PTSD. Additionally, VA treatment records show that the Veteran has been currently diagnosed with cannabis use disorder, stimulant use disorder, and alcohol use disorder. However, VA’s General Counsel has concluded that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs (a substance abuse disability) is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). The Veteran’s claim for service connection for an acquired psychiatric disorder was filed after October 31, 1990. Therefore, the Veteran’s currently diagnosed cannabis use disorder, stimulant use disorder, and alcohol use disorder cannot be directly service connected as a matter of law. Service connection is possible for a substance abuse disorder acquired as secondary to, or as symptoms of, a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, in this case, there is no medical or lay evidence indicating that the Veteran’s substance abuse is related to a service-connected disability. As there is no evidence in support of service connection on a secondary basis, service connection for alcohol and drug abuse is precluded by law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Further, the evidence does not show that Veteran had a diagnosis of, treatment for, or complaint of an acquired psychiatric disorder during his active duty service. Additionally, the Veteran stated that he was stressed from being in a warzone, to include experiencing constant mortar attacks, and witnessing casualties and the bad treatment of the Vietnamese enemy, children, and women. He reported that this was why he began his alcohol and drug use during service. He also describes the typhoon as one of the most terrifying events of his life. The Board finds that the Veteran’s statements that his psychiatric disability began during service are outweighed by his contemporaneous service treatment records, which do not show any complaints, treatment, or diagnosis of an acquired psychiatric disorder disability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Further, even assuming that the Veteran’s statements regarding the stressors during his service are true, the earliest documentation of a psychiatric disability is January 2012, approximately 43 years since separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). None of the medical evidence suggests that the Veteran’s current acquired psychiatric disorder is related to service. The Board finds that the July 2013 VA examination opinion that the Veteran’s depressive disorder was less likely than not due to his military service and more likely than not due to his post-service chronic back pain is probative evidence as to the etiology of the Veteran’s acquired psychiatric disorder. The opinion was based on a thorough review of the Veteran’s medical records, consideration of his lay statements, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Further, the opinion is consistent with post-service treatment records. The Board finds that the persuasive evidence of record shows that the Veteran’s acquired psychiatric disorder did not have its onset during service, or was otherwise etiologically related to service. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for a back disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). (Continued on the next page)   The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of psychiatric disabilities, to include depressive disorder, the issue of causation of such medical disabilities is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Board recognizes the Veteran’s lay assertions that his acquired psychiatric disorder was due to his military service, but finds that the Veteran is not competent to provide such a medically complex etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran’s lay assertions are not competent to provide a medical link between his acquired psychiatric disorder and military service. Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s acquired psychiatric disorder disability is related to his service, the Board has not uncovered any credible evidence which supports such a connection and the Veteran lacks the medical expertise to competently determine the etiology of his acquired psychiatric disorder. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for an acquired psychiatric disorder. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.