Citation Nr: 21061453 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-40 071A DATE: October 4, 2021 ORDER The application to reopen the claim of service connection for hypertension is denied. Entitlement to an effective date prior to October 18, 2013 for the grant of the claim of service connection for other specified trauma and stress-related disorder is denied. Entitlement to service connection for diabetes is denied. FINDINGS OF FACT 1. A March 2008 Board decision denied the claim of service connection for hypertension. The Veteran did not appeal or seek reconsideration of this decision. 2. Evidence received since the March 2008 Board decision includes information that was not previously considered, but which does not relate to unestablished facts necessary to substantiate the claim of service connection for hypertension. 3. A March 2008 Board decision denied the claim of service connection for posttraumatic stress disorder (PTSD). The Veteran did not appeal or seek reconsideration of this decision. 4. On October 18, 2013, VA received the Veteran's claim of service connection for PTSD in a Fully Developed Claim (VA Form 21-526EZ). There is no evidence of an unadjudicated formal or informal claim of service connection for PTSD or other acquired psychiatric disorder between the final March 2008 Board decision and October 18, 2013, the date of VA's receipt of the Fully Developed Claim. 5. The preponderance of the evidence does not reflect that the Veteran's diabetes had its onset in service, is otherwise related to service, or manifested within a year of separation from service. CONCLUSIONS OF LAW 1. The March 2008 Board decision denying the claim of service connection for hypertension is final. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1103. 2. The evidence received since the March 2008 Board decision is not new and material and, therefore, is insufficient to reopen the claim of service connection for hypertension. 38 C.F.R. § 3.156(a). 3. The criteria for an effective date earlier than October 18, 2013 for the grant of the claim of service connection for other specified trauma and stress-related disorder are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (in effect prior to March 24, 2015), 3.400. 4. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to October 1976 and December 1990 to May 1991. He also performed service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim of service connection for hypertension because evidence submitted was not new and material, granted the claim of service connection for other specified trauma and stress-related disorder (previously denied as PTSD), effective October 18, 2013, the date VA received the Veteran's Fully Developed Claim, and denied the claim of service connection for diabetes. The Veteran submitted his substantive appeal (VA Form 9) in August 2017 and indicated that he desired a hearing before a Veterans Law Judge (VLJ). However, the Veteran failed to appear at the scheduled Board hearing. Therefore, the Board considers the hearing request withdrawn and will proceed to adjudicate the case based on the evidence of record. 38 C.F.R. § 20.704(d). As a final preliminary matter, the Veteran timely appealed only the effective date assigned for the grant of service connection for other specified trauma and stress-related disorder. In January 2015, he submitted a Notice of Disagreement (NOD) with the effective date of the grant of service connection for that claim, but did not appeal the disability rating assigned. Therefore, the issue of the proper effective date for the grant of the claim of service connection for other specified trauma and stress-related disorder is properly before the Board. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision). Application to reopen the claim of service connection for hypertension Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a) (a Board decision is final on the date stamped on the face of the decision). In a March 2008 decision, the Board found that the Veteran's hypertension did not preexist service and that, while the evidence of record demonstrated a current diagnosis of hypertension, there was no evidence that it was related to any injury or disease in service. Thus, the claim of service connection was denied. The Veteran did not appeal or seek reconsideration of the Board's March 2008 decision. Consequently, the decision became final. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the veteran that may have been rendered by the RO. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As noted previously, the Board denied the claim of service connection for hypertension in March 2008. In a November 2014 rating decision, the claim of service connection for hypertension was denied by the Agency of Original Jurisdiction (AOJ) as the evidence submitted was not new and material. Pertinent to the claim of service connection for hypertension, evidence added to the claims file since the final March 2008 Board decision includes VA treatment records. This evidence reflects that the Veteran has a current disability of hypertension. However, there is no new evidence indicating or tending to show that the Veteran's hypertension had its onset in service or within one year of his separation from service, is otherwise related to service, or was incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA), or relating to these matters. Overall, the above-cited evidence is either duplicative or cumulative of the evidence previously of record, or, if new, is either not relevant to the claim of service connection for hypertension, or does not provide a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that, even when considering the "low threshold" for determining whether evidence is new and material pursuant to Shade, 24 Vet. App. at 110, the criteria for reopening the claim of service connection for hypertension are not met. Furthermore, while VA has an obligation to assist the Veteran in the development of his application to reopen, see Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) (noting that 38 U.S.C. § 5103A "does not require VA to assist claimants attempting to reopen," but that "VA has chosen to assist claimants attempting to reopen in limited circumstances"), it is the Veteran's responsibility to present and support a claim of service connection. 38 U.S.C. § 5107(a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). As the Veteran has not identified or presented any new and material evidence pertaining to his claim of service connection for hypertension, the application to reopen the claim must be denied. Moreover, because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim under consideration, the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Entitlement to an earlier effective date for the grant of service connection for other specified trauma and stress-related disorder The Veteran contends he is entitled to an effective date of October 1996, the date he filed a claim of service connection for PTSD, for the grant of service connection for other specified trauma and stress-related disorder. Generally, the effective date for a grant of service connection on an original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 38 C.F.R. §§ 3.150, 3.151. Prior to March 24, 2015, a "claim" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating intent to apply for a benefit under the laws administered by the VA was considered an informal claim provided it identified, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received under the relevant regulations prior to their recent amendment, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements of a claim prior to March 24, 2015, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Moreover, the Federal Circuit recently reversed the Court and held in Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) that a claim must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality, before VA's duty to assist in the development of the claim is triggered. For the following reasons, assignment of an earlier effective date for the grant of the claim of service connection for other specified trauma and stress-related disorder is not warranted. In a March 2008 decision, the Board denied the claim of service connection for PTSD. The Veteran did not appeal or seek reconsideration of the Board's March 2008 decision. Consequently, the decision became final. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1100(a). For purposes of assigning an effective date for the claim of service connection for other specified trauma and stress-related disorder, the Board cannot look back prior to the October 1996 claim for PTSD, also an acquired psychiatric disorder like the service-connected other specified trauma and stress-related disorder, but must look to the earliest claim of service connection filed subsequent to the Board's March 2008 final denial and prior to October 18, 2013, the date the Fully Developed Claim was received by the VA. Even given the rule that a claim for which a veteran has sought service connection must be construed broadly, there is no evidence of any unadjudicated formal application of a claim of service connection for an acquired psychiatric disorder, to include PTSD or other specified trauma and stress-related disorder, between the final March 2008 Board decision and October 18, 2013, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). There is no communication indicating that the Veteran filed a formal or informal claim for an acquired psychiatric disorder prior to the October 18, 2013 Fully Developed Claim. Moreover, there is no evidence of record mentioning an acquired psychiatric disorder in a way that, sympathetically read, could satisfy the "identify the benefit sought requirement." Sellers, 965 F.3d 1328 (a claim must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality, before VA's duty to assist in the development of the claim is triggered); Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) ("language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition" can satisfy the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a)). The documents in the claims file dated between the final March 2008 Board decision and October 18, 2013 are either administrative documents or relate to the Veteran's claim of service connection for hypertension. Finally, the Board notes that 38 C.F.R. § 3.157(b)(1), in effect prior to March 24, 2015, provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, "[o]nce a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree." This regulation "makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA). In this case, 38 C.F.R. § 3.157(b)(1) does not apply as there was no prior allowance or disallowance of a formal claim based on the disability not being compensable in degree. For the foregoing reasons, the preponderance of the evidence is against the claim for an effective date prior to October 18, 2013 for the grant of the claim of service connection for other specified trauma and stress-related disorder. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for diabetes The Veteran contended in his August 2017 substantive appeal (VA Form 9) that his diabetes was related to his exposure to contaminated water at Camp Lejeune. The theory of entitlement to service connection for diabetes on a direct basis is the only theory of entitlement that has been raised by the evidence of record. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"); Robinson v. Peake, 21 Vet. App. 545, 553 (2008). The Veteran has not contended during the appeal period that his diabetes was incurred or aggravated during a period of ACDUTRA. VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011) (subsequently rescinded). However, the evidence of record does not show that the Veteran was ever present at Camp LeJeune, and his diabetes is not a disorder that is presumptively linked to exposure to the contaminated water. 38 C.F.R. § 3.309(f). Thus, service connection is not warranted on a presumptive basis based on exposure to contaminated water at Camp Lejeune. Even if a claimant cannot establish service connection on a presumptive basis, however, he can still establish that a disease not presumed service-connected is related to service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). For the following reasons, entitlement to service connection for diabetes is not warranted. There is no lay or medical evidence of record indicating that the Veteran's diabetes manifested in service or within the one-year presumptive period for chronic diseases or is related to service or may be associated with service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of diabetes in the years between service and his post-service diagnosis in approximately June 1999, and he did not relay a diagnosis of diabetes during those years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). The Veteran's service treatment records from active duty do not contain any notations relating to symptoms, treatment, or diagnosis relating to diabetes. The endocrine system was normal on the April 1991 redeployment examination, June 1992 periodic physical, and February 1995 periodic physical examination. Post-service records reveal no mention of treatment or diagnosis for diabetes until the Veteran's June 1999 diagnosis of diabetes that was noted in a May 2009 VA treatment record, approximately eight years after separation from active duty. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the lack of notations relating to symptoms, treatment, or diagnosis relating to diabetes in the Veteran's service treatment records, as well as lack of statements indicating continuity of symptoms or continuous symptoms, that can be considered as evidence against the claim. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained weight of the malady at issue). To the extent that the Veteran's lay statements suggest a relationship between his diabetes and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. As there is no evidence indicating that the Veteran's diabetes may be associated with active military, naval, or air service, a VA examination is not warranted for this claim. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the foregoing reasons, the preponderance of the evidence does not reflect that the Veteran's diabetes had its onset in service, is related to service, or manifested within a year after separation from service. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.