Citation Nr: 21070042 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-21 144 DATE: November 22, 2021 ORDER As new and material evidence to reopen the claim for service connection for hearing loss has not been received, the petition to reopen is denied. As new and material evidence to reopen the claim for service connection for prostate cancer has not been received, the petition to reopen is denied. As new and material evidence to reopen the claim for service connection for a psychiatric condition has been received, the petition to reopen is granted. Entitlement to service connection for an eye disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to service connected a lumbosacral strain, is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service connected a lumbosacral strain, is remanded. FINDINGS OF FACT 1. In a July 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for service connection for hearing loss, but the Veteran did not file a timely or valid Notice of Disagreement (NOD) as to this issue; meanwhile, no pertinent exception applies to vitiate the finality of this rating decision with respect to this issue. 2. The evidence pertaining to the Veteran's hearing loss submitted after the July 2013 rating decision is cumulative and redundant of evidence of record at the time of the prior denial. 3. In a December 2015 rating decision, the AOJ denied the Veteran's claim for service connection for prostate cancer, but the Veteran did not file a timely or valid NOD as to this issue; meanwhile, no pertinent exception applies to vitiate the finality of this administrative decision with respect to this issue. 4. The evidence pertaining to the Veteran's prostate cancer submitted after the December 2015 rating decision is cumulative and redundant of evidence of record at the time of the prior denial. 5. A December 2015 rating decision denied the claim for service connection for a psychiatric condition and the Veteran filed a NOD; the Veteran was issued a Statement of the Case (SOC) as to the claim on September 26, 2016 but the Veteran did not file a timely or valid VA Form 9 as to this issue; meanwhile, no pertinent exception applies to vitiate the finality of this rating decision with respect to this issue. 6. The evidence pertaining to the Veteran's psychiatric condition submitted after the September 26, 2016 SOC is not cumulative or redundant of evidence of record at the time of the prior denial. 7. The Veteran's eye disorder was not shown as chronic in service and is not otherwise etiologically related to an in-service injury or disease. 8. Refractive errors are not disabilities for VA compensation purposes. CONCLUSIONS OF LAW 1. The July 2013 rating decision denying service connection for hearing loss is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 2. As additional evidence received since the AOJ's July 2013 denial is not new and material, the criteria for reopening the claim for service connection for hearing loss are not met. 38 U.S.C. §§ 5107 5108; 38 C.F.R. §§ 3.156, 3.159. 3. The December 2015 rating decision denying service connection for prostate cancer is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 4. As additional evidence received since the AOJ's December 2015 denial is not new and material, the criteria for reopening the claim for service connection for prostate cancer are not met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 5. The September 26, 2016 rating decision denying service connection for a psychiatric condition is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 6. As additional evidence received since the AOJ's September 2016 denial is new and material, the criteria for reopening the claim for service connection for a psychiatric condition are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 7. The criteria for service connection for an eye disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 28. 1978 to April 28, 1978. The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal of a July 24, 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes in passing that the July 24, 2018 rating decision denied service connection for a back disorder. That claim was subsequently granted service connection in an April 16, 2021 rating decision. As the grant of service connection is a full grant of that appeal sought, the claim ceased to be in appellate status at that time. Meanwhile, the Board further notes that there is no Notice of Disagreement received within one year of the April 16, 2021 rating decision about the initial rating or an effective date. Ultimately, the Board concludes that this claim too is final. On the other hand, the Board additionally notes that on June 21, 2021, the RO issued the Veteran a rating decision denying certain other claims. The Veteran returned a timely and valid Notice of Disagreement on a VA Form 10182, which was received on July 10, 2021. Jurisdiction is proper for the issues listed on that NOD in the Appeals Modernization Act, while the claims listed on the title page shall be adjudicated under the Legacy system. The Board is unable to adjudicate AMA issues in a Legacy docket; therefore, those claims will not be addressed in this decision either. This appeal has been advanced on the Board's docket on account of good cause shown. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). New and Material Evidence 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. 1. As new and material evidence to reopen the claim for service connection for hearing loss has not been received, the petition to reopen is denied. The Veteran filed a claim for service connection for bilateral hearing loss in November 2011. A July 2013 rating decision denied the claim for service connection for hearing loss as the record did not show a medical link between his hearing loss and military service. Evidence considered in the July 2013 rating decision includes service treatment records, a VA audiological examination and post-service clinical records. The February 2012 VA examination confirms bilateral hearing loss at a disabling level for VA purposes. See id. at Pages 3-4, Question No. 1a. Despite this positive diagnosis, the examiner concluded that it is not at least 50 percent likely attributable to active duty service, see id. at Pages 7-8, Question No. 4. The examiner indicated that the "Veteran reports no history of military noise exposure during his basic training and states that he was discharged after one month with a back injury prior to participating in weapons training." See VA Examination, supra at Page 7, Question No. 4. In July 2013, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until November 2018, when VA received a petition to reopen his claim for entitlement to service connection for hearing loss. Therefore, the July 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from July 2013 rating decision. The Veteran sought to reopen the claim in November 2018. Evidence received since the July 2013 rating decision includes updated VA treatment records. However, while the additional evidence is new, in that it has not been previously considered by VA; the evidence is not material, in that it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss. Therefore, the Board finds that, though new, the additional evidence received since the prior final denial of service connection is not probative of the issue. Thus, the added evidence is not material. See 38 C.F.R. § 3.156. The Board also notes that additional service records, namely service personnel records, were added to the claims file in September 2015 which is after the issuance of the initial July 2013 rating decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the additional service personnel records that had been added to the record since the July 2013 rating decision are not relevant as they do not relate to a claimed in-service event, injury or disease. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the July 2013 rating decision need not be reconsidered. As such, the Board finds that new and material evidence sufficient to reopen the Veteran's claim of service connection for hearing loss has not been submitted. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit-of-the-doubt doctrine does not apply and the petition to reopen a claim of service connection for hearing loss is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. As new and material evidence to reopen the claim for service connection for prostate cancer has not been received, the petition to reopen is denied. The Veteran initially filed a claim for service connection for prostate cancer in August 2015. A December 2015 rating decision denied the Veteran's claim for service connection for prostate cancer as the condition was neither occurred in nor was caused by service. Evidence considered in this rating decision included the Veteran's service treatment records, service personnel records and post-service clinical records. In December 2015, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until June 2018, when VA received a petition to reopen his claim for entitlement to service connection for prostate cancer. Therefore, the December 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from December 2015 rating decision. The Veteran sought to reopen the claim in June 2018. Evidence received since the December 2015 rating decision includes updated VA treatment records. However, while the additional evidence is new, in that it has not been previously considered by VA; the evidence is not material, in that it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for prostate cancer. Therefore, the Board finds that, though new, the additional evidence received since the prior final denial of service connection is not probative of the issue. Thus, the added evidence is not material. See 38 C.F.R. § 3.156. As such, the Board finds that new and material evidence sufficient to reopen the Veteran's claim of service connection for prostate cancer has not been submitted. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit-of-the-doubt doctrine does not apply and the petition to reopen a claim of service connection for prostate cancer is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. As new and material evidence to reopen the claim for service connection for a psychiatric condition has been received, the petition to reopen is granted. The Veteran filed a claim for service connection for all psychiatric conditions to include posttraumatic stress disorder (PTSD) in September 2015. A December 2015 rating decision denied service connection for all psychiatric conditions to include PTSD as the condition was not occurred in or caused by service and do not show a diagnosed psychiatric condition. The Veteran filed a timely NOD and a September 2016 SOC was issued. However, the Veteran did not file a timely Form 9. As no VA Form 9 was received within 60 days following the issuance of this SOC, it became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. However, subsequently, there appears to be evidence of a separate diagnosis of depression. See VA Treatment Record ( Mar. 6, 2020 ) (rec'd June 16, 2021). The Board concludes that this evidence of a separate, relevant psychiatric diagnosis is new and material under the provisions of 38 C.F.R. § 3.156. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal is accordingly reopened. 4. Entitlement to service connection for an eye disorder is denied. The Veteran generally contends that his eye disorder stems from his active duty service. See Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). No specific argument has been provided. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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, 1167 (Fed. Cir. 2004). For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive errors of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are silent to any complaints, diagnosis, or treatments related to an eye disorder. Post-service treatment records reflect an assessment of primary open angle glaucoma and early cataracts in a February 2013 VA treatment note as well as complaints of blurry vision and assessments of dry eyes, blurred vision due to refractive error/presbyopia, cataracts and primary open angle glaucoma in an August 2020 VA treatment note. The Board finds that service connection for an eye disorder is not warranted. The probative evidence of record shows that the Veteran was not diagnosed with primary open angle glaucoma and early cataracts until 2013, more than 30 years after service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the records do not reflect that any medical professional has ever indicated that his diagnosed eye condition may have been related to active duty service. To the extent that the Veteran has been diagnosed with an refractive error, such is not a disability for which service connection may be awarded. The Board also notes that an opinion as to service connection was not obtained. However, the Board finds that such an etiology opinion is not required. In this regard, in determining whether the duty to assist requires VA to provide a medical examination or medical opinion with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For this matter, although the Veteran has a current diagnosis of an eye disorder, the evidence does not indicate that the Veteran's current eye disorder may be related to his service and the Veteran has not provided any argument as to why he believes the condition was related to his service. See McLendon v. Nicholson, supra. In this regard, a mere conclusory generalized lay statement that service event or illness caused a current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Board finds that a VA examination opinion is not necessary to decide this claim as to direct service connection and the Veteran has not provided a medical opinion to weigh in on this matter. While the Veteran may believe his eye disorder had its onset in service, he is not competent to provide a diagnosis or nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for an eye disorder. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran alleges that the failure to provide these examinations constitute a failure to assist him in developing his claims. See VA Form 9 (rec'd Apr. 30, 2020), at Question No. 9 (his allegation No. 2 therein). Service treatment records reflect one documented in-service clinic notation whereby the Veteran had subjective "episodes of forgetting where he is and what he is doing, then becomes shaky." See STR ( Apr. 20, 1978 ) (rec'd Mar. 21, 2000). Post-service treatment record reflect psychiatric treatment and an assessment of paranoid type schizophrenia in a March 2011 VA treatment note. On remand, an etiology opinion should be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). 2. Entitlement to service connection for radiculopathy of the left lower extremity to include as secondary to service connected a lumbosacral strain, is remanded. 3. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service connected a lumbosacral strain, is remanded. Meanwhile, the Board notes that upon VA examination of the spine, the Veteran did not appear to have symptoms of radiculopathy. See VA Exam ( Nov. 26, 2019 ), at Section VIII. The Board determines that, at a minimum, an addendum opinion is warranted to reconcile that negative finding with evidence that neuropathy of the bilateral lower extremities was diagnosed no later than June 2013. See Medical Treatment Record Non-Government Facility ( June 5, 2013 ) (rec'd Feb. 11, 2019). Without this, the November 2019 opinion is not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). As a result, these claims should also be remanded. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate examiner to confirm specific diagnoses and to determine the etiology of the Veteran's claimed acquired psychiatric disorder. A complete copy of the claims file, to include this remand, the Veteran's complete service treatment records, and the Veteran's complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. For each of the above diagnosed disorders, the examiner is asked to respond to the following question: For any acquired psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that each of the Veteran's current disorder(s) had onset in service, or is otherwise related to his active duty service? If the examiner concludes that the Veteran does not have any such disorder, a statement reconciling such with previous diagnoses of PTSD, schizophrenia, and depression would be required. Regardless, the examiner should discuss the significance or lack thereof of one documented in-service clinic notation whereby the Veteran had subjective "episodes of forgetting where he is and what he is doing, then becomes shaky." See STR ( Apr. 20, 1978 ) (rec'd Mar. 21, 2000). A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate examiner to confirm specific diagnoses and to determine the etiology of the Veteran's claimed left and right lower extremity radiculopathy. A complete copy of the claims file, to include this remand, the Veteran's complete service treatment records, and the Veteran's complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. The examiner should provide a response to the following: (A) Is it at least as likely as not (50 percent or greater probability) that any lower extremity radiculopathy it had onset in service, or is otherwise related to his active duty service? (B) Is it at least as likely as not (50 percent or greater probability) that any lower extremity radiculopathy was caused or aggravated by a service-connected lumbosacral strain? If the examiner concludes that the Veteran does not have radiculopathy, a statement reconciling such with previous diagnoses would be required. The examiner is also asked to consider whether the Veteran may alternatively have a knee disorder, and should accordingly discuss the relevance or lack thereof of documented knee pain from the same in-service injury by which the lumbosacral strain is service connected. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.