Citation Nr: 20052990 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-54 886 DATE: August 10, 2020 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a low back disorder, and the application to reopen is denied. Service connection for bilateral leg compartment syndrome is denied. REMANDED A rating in excess of 10 percent for residuals of a ruptured left eardrum is remanded. FINDINGS OF FACT 1. In an unappealed September 1983 rating decision, the RO denied service connection for a back disorder. 2. The evidence associated with the claims file subsequent to the September 1983 denial includes evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a low back disorder. 3. Bilateral leg compartment syndrome was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSIONS OF LAW 1. The evidence received since the September 1983 rating decision is not new and material, and the claim for service connection for a low back disorder is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 2. Bilateral leg compartment syndrome was not incurred or aggravated during active duty. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to February 1983. In November 2018, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. In March 2020, the Veteran withdrew his request for a Video Conference hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is considered withdrawn. The Veteran’s attorney submitted a statement on April 22, 2020, after receiving the supplemental statement of the case (SSOC), requesting that the Board wait 90 days before issuing a decision. The Veteran’s claim was certified to the Board on May 7, 2020. In a May 15, 2020 statement, the Veteran’s attorney requested that the Board continue to wait the full 90 days from the original April 22, 2020 letter, plus an additional 30 days for VA mail processing, before issuing a decision. The Board notes that it has been 90 days since the April 22, 2020 letter was submitted and 90 days since the issuance of the May 7, 2020 certification letter. With regard to the request for an additional 30 days for VA mail processing, this request is denied. 90 days following the mailing of notice that an appeal has been certified to the Board or until the Board issues a decision, whichever comes first, is given to submit additional evidence and argument. 38 C.F.R. § 20.1304 (a). As noted, 90 days have passed since the certification letter was sent on May 7, 2020, and the Board is now ready to issue a decision. No unfairness is found in doing so since the Veteran and his representative have had ample opportunity throughout the appeals process, which has been lengthy, to submit evidence and argument. New and Material Evidence As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156 (a), new evidence means existing 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). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156 (a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder, and if so, whether the reopened claim should be granted In a September 1983 rating decision, the RO denied service connection for a back disorder (claimed as a back condition) because there was no evidence that the Veteran sustained a back injury in service. The Veteran did not file an appeal and the decision became final. In January 2011, the Veteran filed his current petition to reopen a claim for service connection for a back disorder. The pertinent evidence added to the record since the September 1983 rating decision includes VA treatment records showing treatment for the low back and a diagnosis of thoracolumbar scoliosis, spondylosis and degenerative disc disease. The evidence also includes an April 2020 statement from P.E.W., who identified himself as a retired Master Chief Hospital Corpsman E-9, who served as an independent duty hospital corpsman onboard submarines, responsible for all health care. P.E.W. claimed to have served with the Veteran aboard the USS Bonefish from 1979 to 1983, and to have treated the Veteran for leg injuries during that time. He also stated that the Veteran was involved in an automobile accident in 1982 resulting in a compression fracture of L5. The record also includes the Veteran’s statements that he injured his back in a car accident in service. The Veteran’s statements are cumulative and redundant of statements in the record at the time of the September 1983 rating decision. Furthermore, although new, the medical records and the statement from P.E.W. are not material, in that they do not show that a currently diagnosed low back disorder is related to the Veteran’s active military service. The Board notes specifically that the statement from P.E.W. is based solely on the Veteran’s reports and is not corroborated by the service treatment records. As such, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a low back disorder is not reopened.  Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 2. Service connection for bilateral leg compartment syndrome The Veteran contends that his currently diagnosed bilateral leg compartment syndrome developed as a result of running and performing physical training (PT) in improper footwear during recruit training and Navy diver training, and as a result of various other foot and ankle injuries during service. See March 2012 statement in support of claim and May 2013 notice of disagreement (NOD). Bilateral leg compartment syndrome was not diagnosed until many years after service, and there is no competent evidence to establish that the current bilateral leg compartment syndrome is due to any event or incident of the Veteran's period of active duty. Service treatment records do not show evidence of bilateral leg compartment syndrome during active duty or at discharge. Post-service VA and private treatment records dated many years after discharge show treatment for bilateral leg compartment syndrome. However, the evidence does not indicate that the diagnosed bilateral leg compartment syndrome is due to any event or incident of the Veteran's period of active duty. In this regard, as noted above, an April 2020 statement was submitted by P.E.W., who identified himself as a retired Master Chief Hospital Corpsman E-9, who served as an independent duty hospital corpsman onboard submarines, responsible for all health care. P.E.W. claimed to have served with the Veteran aboard the USS Bonefish from 1979 to 1983, and to have treated him for shin splints and pain in both legs on several occasions during that time, including while the Veteran was in diving school. P.E.W. opined that the Veteran’s later diagnosis of chronic excursional compartment syndrome was aggravated by diving school and submarine duty. See April 2020 statement from P.E.W. The Board notes that P.E.W. has not submitted any credentials to verify his claim that he served as the Master Chief Hospital Corpsman aboard the USS Bonefish from 1979-1983, while the Veteran was there, and no evidence to substantiate his allegations that he treated the Veteran during that time. As such, the Board finds that he is not competent to provide a nexus between the Veteran’s currently diagnosed bilateral leg compartment syndrome and his active service or events therein, as it would require medical expertise to say that the current bilateral leg compartment syndrome, identified after service, is the result of an in-service disease or injury. P.E.W. has not been determined to be qualified to render an opinion concerning the medical cause of the Veteran’s bilateral leg compartment syndrome. 38 C.F.R. § 3.159 (a)(1), (2) (2019). The Board also notes that even if P.E.W. was determined to have the medical expertise to give an opinion on the etiology of the Veteran’s bilateral leg compartment syndrome, his opinion is based solely on the Veteran’s reports, and are not corroborated by the service treatment records. Furthermore, P.E.W. did not provide a rationale for his opinion. As such, the opinion lacks probative value, and is inadequate for evaluation purposes. There is no other evidence, VA or private, which indicates that the Veteran's bilateral leg compartment syndrome may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of bilateral leg compartment syndrome, the Board notes that this passage of time weighs significantly against a finding of direct service connection for bilateral leg compartment syndrome. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his bilateral leg compartment syndrome is due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed bilateral leg compartment syndrome and his active service or events therein, as it would require medical expertise to say that the current bilateral leg compartment syndrome, identified after service, is the result of an in-service disease or injury. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his bilateral leg compartment syndrome. 38 C.F.R. § 3.159 (a)(1), (2) (2019). For the reasons and basis stated above, the Board finds that service connection for bilateral leg compartment syndrome is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is the against the claim, that doctrine is not applicable. REASONS FOR REMAND A rating in excess of 10 percent for residuals of a ruptured left eardrum is remanded. The last VA examination for the service-connected residuals of a ruptured left eardrum was conducted in July 2016, over 4 years ago. A remand is warranted to obtain a contemporaneous VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected residuals of a ruptured left eardrum. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examination should include a review of the Veteran's history and current complaints, as well as a comprehensive evaluation and any tests deemed necessary. 3. After completion of the above and any other development deemed necessary, readjudicate the Veteran's increased rating claim, based on the entirety of the evidence. If the benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.