Citation Nr: 21002991 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-58 984 DATE: January 19, 2021 ORDER New and material evidence has not been received, thus the application to reopen the claim of entitlement to service connection for disequilibrium (claimed as dizziness, balance problems and inner ear) is denied. REMANDED Entitlement to a rating in excess of 30 percent for dysthymic disorder is remanded. FINDINGS OF FACT 1. A December 2014 rating decision denied the claim of entitlement to service connection for disequilibrium. The Veteran was notified of his appellate rights but did not file a timely notice of disagreement with that decision or submit new and material evidence within the applicable time period, thus the decision became final. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for disequilibrium and that raises a reasonable possibility of substantiating the claim has not been received since the final December 2014 rating decision. CONCLUSIONS OF LAW 1. The December 2014 rating decision which denied entitlement to service connection for disequilibrium is final. 38 U.S.C. § 7105; 38 C.F.R. § § 3.104, 20.1103. 2. New and material evidence has not been received since the December 2014 denial of entitlement to service connection for disequilibrium, thus, the application to reopen the claim is denied. 38 U.S.C. §§ 1110, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from July 1966 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing in November 2020 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for disequilibrium has been received. In a December 2014 rating decision, the RO denied entitlement to service connection for disequilibrium. The basis for the decision was that there was no causal relationship between the Veteran’s current disequilibrium disability and an in-service disease or injury. The Veteran was notified of the decision and his appellate rights in January 2015. The Veteran did not appeal the December 2014 rating decision within one year or submit new and material evidence or any information or evidence within one year to render the decision non-final for VA purposes. Accordingly, the December 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 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 cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of substantiating the claim. 38 C.F.R. § 3.156 (a). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. 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 to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. 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. The evidence of record received after December 2014 includes VA treatment records, a January 2017 VA examination report, and the December 2020 Board hearing transcript containing the Veteran’s lay statements. The VA treatment records since December 2014 show continued treatment for loss of balance, which is one of the symptoms the Veteran has claimed. However, the VA treatment records after December 2014 are redundant of prior evidence, as they merely show continuing VA treatment for loss of balance. Therefore, the VA treatment records since December 2014 do not contain new evidence pertaining to disequilibrium, which was claimed as dizziness, balance problems and inner ear. The January 2017 VA examination for ear conditions, (including vestibular and infection conditions) is new, however the evidence is not material as it does not show that there is a causal relationship between the Veteran’s current disequilibrium disability and an in-service disease or injury. Although the Veteran reiterated at the December 2020 Board hearing that his disequilibrium disability is related to his military service, such lay statements are duplicative of his prior contentions, and therefore not new. Any lay statements made by the Veteran to the effect that he suffers from a disequilibrium disability as a result of his service in the military are insufficient to reopen a claim under 38 U.S.C. 5108. These contentions were made at the time of the prior decision and reiterating them does not constitute new evidence. See Reid v. Derwinsky, 2 Vet. App. 312 (1992). In summary, the claim for entitlement to service connection for disequilibrium was denied in the December 2014 rating decision because the evidence of record did not demonstrate that the Veteran’s disability was the result of an in-service event, injury or disease. The rating decision is final because the Veteran did not timely appeal that denial and new and material evidence was not received within the one-year appeal period following issuance of the December 2014 rating decision. The evidence associated with the claims file after this decision is duplicative or cumulative of evidence already considered by VA and does not demonstrate that the claimed disequilibrium disability is due to the Veteran’s military service. Therefore, the evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Accordingly, new and material evidence to reopen the finally disallowed claim for entitlement to service connection for disequilibrium has not been received, the benefit-of-the-doubt doctrine is not for application, and the application to reopen the claim of entitlement to service connection for disequilibrium is denied. Gilbert v. Derwinski, 1 Vet. App. 4 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to an increased rating in excess of 30 percent for dysthymic disorder is remanded. At the November 2020 Board hearing, the Veteran testified that his service-connected dysthymic disorder has increased in severity since he was last examined by VA in December 2016. Although the Veteran submitted a private psychiatric examination report which was received in November 2020, the report does not provide a full description of the psychiatric disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The Board therefore finds that there is insufficient contemporaneous evidence of record to evaluate the Veteran’s disability, and an updated VA examination is needed to fully and fairly evaluate the Veteran’s claim for an initial increased rating for his dysthymic disorder. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant’s disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination). Thus, the Veteran should be provided an opportunity to report for an examination to ascertain the current severity and manifestations of his psychiatric disability. The Veteran also testified at the December 2020 Board hearing that he has received private treatment for his psychiatric disorder within the appeal period. Upon remand, VA must obtain authorization from the Veteran to request these outstanding and potentially relevant records. The evidence also reflects that the Veteran continues to receives VA treatment within the appeal period. However, the most recent VA treatment records are from January 2018. On remand, updated VA treatment records be obtained. The matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (c). Expedited handling is requested.) 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. 2. Contact the Veteran and provide him with a VA Form 21-4142 to identify all relevant treatment from private health care providers for his psychiatric disability. Make two requests for the authorized records from any identified private health care provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a medical examination to determine the current severity of his service-connected dysthymic disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected dysthymic disorder alone. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, 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.