Citation Nr: 21070218 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-00 952 DATE: November 23, 2021 ORDER 1. New and material evidence not having been received, the petition to reopen the previously denied claim of service connection for right testicle removal is denied. 2. New and material evidence not having been received, the petition to reopen the previously denied claim of service connection for a back disorder is denied. 3. New and material evidence not having been received, the petition to reopen the previously denied claim of service connection for erectile dysfunction is denied. 4. New and material evidence not having been received, the petition to reopen the previously denied claim of service connection for tinnitus is denied. 5. New and material evidence having been received, the claim of service connection for a psychiatric disorder is reopened. 6. Service connection for sleep apnea is denied. 7. Service connection for hypertension is denied. 8. Service connection for a headache disorder is denied. REMANDED Service connection for a psychiatric disorder. FINDINGS OF FACT 1. The evidence received since a January 2014 rating decision denying reopening service connection for right testicle removal is cumulative and redundant of evidence of record at the time of the prior denial and, when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim or otherwise raise a reasonable possibility of substantiating the claim. 2. The evidence received since a January 2014 rating decision denying service connection for a back disorder is cumulative and redundant of evidence of record at the time of the prior denial and, when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim or otherwise raise a reasonable possibility of substantiating the claim. 3. The evidence received since a January 2014 rating decision denying service connection for erectile dysfunction is cumulative and redundant of evidence of record at the time of the prior denial and, when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim or otherwise raise a reasonable possibility of substantiating the claim. 4. The evidence received since a January 2014 rating decision denying service connection for tinnitus is cumulative and redundant of evidence of record at the time of the prior denial and, when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim or otherwise raise a reasonable possibility of substantiating the claim. 5. The Veteran does not have sleep apnea that is causally or etiologically related to any disease, injury, or incident during service. 6. The Veteran does not have hypertension that is causally or etiologically related to any disease, injury, or incident during service or that had its onset within one year of discharge. 7. The Veteran does not have a headache disorder that is causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for right testicle removal are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of service connection for a back disorder are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to reopen the claim of service connection for erectile dysfunction are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria to reopen the claim of service connection for tinnitus are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for a headache disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to March 1989 and from November 1989 to December 1989. The case is on appeal from November 2017 and May 2018 rating decision. The Board notes that, in March 2019, the Veteran's attorney submitted a letter to VA indicating that he was withdrawing from representing the Veteran. After an RO has certified an appeal to the Board, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6. In August 2021, the Veteran's attorney was notified that he had not presented good cause for withdrawal and, unless a motion to withdrawal was received within 30 days, he would remain the Veteran's representative for this appeal. As no response was received, the attorney remains the Veteran's representative. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. New and Material Evidence Legal Criteria In order to reopen a claim which was denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence or record to an unestablished fact necessary to substantiate the claim; which is 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 which raises the possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regulations do not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Rather the Board must focus on whether the evidence, taken together with evidence of record, could at least trigger the duty to assist by providing a medical opinion. Id. 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for right testicle removal. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a back disorder. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for erectile dysfunction. 4. Whether new and material evidence has been received to reopen a previously denied claim of service connection for tinnitus. The Veteran seeks to reopen claims of service connection for right testicle removal, a back disorder, erectile dysfunction and tinnitus. By a December 2000 rating decision, a claim of service connection for right testicle removal was denied due to it being unrelated to service. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the December 2000 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Thereafter, the Veteran claimed service connection for impotence in July 2012, claimed service connection for a back disorder and reopening service connection for right testicle removal in October 2012, and claimed service connection for tinnitus in March 2013. By a January 2014 rating decision, these claims were denied. The right testicle removal claim was denied for failure to submit new and material evidence, the back and erectile dysfunction claims were denied due to being unrelated to service, and the tinnitus claim was denied for no current disability. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding these claims was received until the present claims to reopen in February 2018. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the January 2014 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The pertinent evidence associated with the claim's file at the time of the prior decision consisted of the Veteran's service treatment records (STRs), service personnel records (SPRs), and post-service treatment records. The evidence added to the file since the January 2014 rating decision includes unrelated VA and private treatment records, March 2013 and August 2017 Veteran statements, and an October 2017 Deferred Rating Decision that address only the psychiatric disorder claim remanded herein. In March 2018, STRs and SPRs were added to the file. However, the STRs are duplicative of those already of record and the "new" SPRs are not "material" because they do not relate to an unestablished fact necessary to substantiate the right testicle, erectile dysfunction, back, or tinnitus claims. Therefore, while some new evidence has been submitted, it is not relevant to these claims. Accordingly, the evidence since the final January 2014 rating decision is not new and material under 38 C.F.R. § 3.156(a). Even with consideration of the low threshold set forth in Shade, the Veteran has not submitted any new and material evidence that relates to an unestablished fact necessary to substantiate any of these claims. For these reasons, reopening the claims of service connection for right testicle removal, a back disorder, erectile dysfunction, and tinnitus is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for these issues, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). 5. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a psychiatric disorder. By a January 2014 rating decision, a claim of service connection for posttraumatic stress disorder (PTSD) was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2017. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 2014 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a psychiatric disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also August 2017 Veteran Statement; October 2017 Deferred Rating Decision. The reopened claim is further addressed in the remand section below. II. Service Connection 6. Service connection for sleep apnea. 7. Service connection for hypertension. 8. Service connection for a headache disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran is seeking service connection for sleep apnea, hypertension, and a headache disorder. The Veteran's service treatment records (STRs) do not include reports of or treatment for any of the claimed conditions. A November 2017 VA sleep study was found to show that he has sleep apnea. An October 2011 VA treatment record notes that the Veteran has hypertension. The Board finds that the Veteran does not have sleep apnea, hypertension, or a headache disorder had its onset during service, within one year of discharge, or that is otherwise related to service. In this regard, the Veteran has not asserted, and the medical evidence does not show, that he experienced these conditions during service or in the years following discharge. Furthermore, there is no other evidence of record indicating a nexus between in the Veteran's military service and the claimed conditions. While the Veteran has not been afforded an examination in regard to these claims, a mere conclusory claim that a current condition is related to service is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a VA examination or opinion is not warranted for this claim. Accordingly, there is insufficient evidence to establish that the Veteran has sleep apnea, hypertension, or a headache disorder that is causally or etiologically related to any disease, injury, or incident during service. Therefore, as the evidence is not at least in equipoise, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Board is remanding another claim for additional development, remand is not necessary for these issues, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND Service connection for a psychiatric disorder. The Veteran is seeking service connection for PTSD. In an August 2017 correspondence, the Veteran stated that he was sexually assaulted during service in December 1989. In an October 2017 Deferred Rating Decision the RO found that the Veteran's SPRs showed some markers consistent with military sexual trauma in December 2019. The Veteran's private treatment records show that he was treated for bipolar disorder and manic depression. As the Veteran has been diagnosed with a psychiatric condition other than PTSD, the Board for has broadly construed the claims to service connection for a psychiatric disorder. See Clemons v. Shinseki, 23 Vet. 1 (2009). The Veteran was afforded a VA examination for this claim in November 2017. The examiner noted a diagnosis of bipolar disorder, but found that the Veteran does not meet the criteria for a PTSD diagnosis. However, the examiner did not offer an opinion as to whether the bipolar disorder is related to service. The Board finds that a remand is necessary to obtain an opinion as to whether the diagnosed psychiatric disorder or disorders are related to service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim is REMANDED for the following action: Obtain an opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's diagnosed psychiatric disorders. The entire claims file should be reviewed by the examiner. (a.) Identify all of the Veteran's psychiatric disorders experienced since August 2017. (Continued on the next page) (b.) The examiner should then state whether it is as at least as likely as not that each diagnosed disorder had its onset during service or is otherwise related to service. A rationale should be provided for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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.