Citation Nr: 21012695 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-23 194 DATE: March 5, 2021 ORDER Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(p) at the intermediate rate between subsections (m) and (n) is granted. Reopening of the claim for service connection for chest wall pain is denied. Reopening of a claim for service connection for an adjustment disorder is denied. FINDINGS OF FACT 1. Throughout the period on appeal the Veteran was in receipt of a 100 percent rating for a psychiatric disability, and the evidence of record shows that the Veteran’s low back disability, without consideration of the psychiatric disability, results in the need for aid and attendance. 2. A November 1988 rating decision denied service connection for chest wall pain and an adjustment disorder. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 3. The evidence associated with the claims file subsequent to the November 1988 does not relate to a previously unestablished fact necessary to substantiate the claim of service connection for chest wall pain. 4. The evidence associated with the claims file subsequent to the November 1988 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim of service connection for an adjustment disorder. CONCLUSIONS OF LAW 1. The criteria for a higher level of special monthly compensation (SMC) have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.151, 3.155, 3.350, 3.352. 2. The November 1988 rating decision is final. 38 U.S.C. §§ 4004, 4005 (1988) [currently codified at 38 U.S.C. §§ 7104, 7105 (2012)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1988) [currently codified at 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018)]. 3. New and material evidence sufficient to reopen the claim of service connection for chest wall pain has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence sufficient to reopen the claim of service connection for an adjustment disorder has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to July 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2012 and September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in June 2012 the RO denied entitlement to a higher level of SMC. The Veteran filed a notice of disagreement with that determination in July 2012. In September 2013, the RO denied reopening of claims for service connection for hypertension, chest wall pain, and an adjustment disorder. The Veteran filed a notice of disagreement with that determination in September 2013. In June 2015 statements of the case, the RO again denied entitlement to a higher level of SMC, as well as reopening of claims for service connection for hypertension, chest wall pain, and an adjustment disorder. With respect to the claims to reopen, the RO also determined that CUE had not been committed in the November 1988 rating decision denying service connection for chest wall pain and an adjustment disorder and the November 1989 rating decision denying service connection for hypertension. The Veteran perfected an appeal as to all of the issues decided in both statements of the case in June 2015. The Board remanded the issues on appeal for additional development in November 2019. The requested medical opinions were obtained in December 2019, and the RO requested that the Veteran release or submit all private treatment records in November 2019. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further denied revision of a November 1988 rating decision which denied service connection for an adjustment disorder and chest wall pain on the basis of clear and unmistakable error (CUE), and dismissed the withdrawn claim to reopen service connection for hypertension. These denials were not appealed, and therefore those issues are no longer on appeal. 38 C.F.R. § 20.1100. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A transcript of the hearing is of record. The Board notes that the Veteran separately perfected an appeal as to the issues of entitlement to specially adapted housing and a special home adaptation grant in September 2018, and that the Veteran requested a hearing on those issues before a VLJ. As such, those issues will be the subject of a later Board decision issued by the VLJ who presides over the hearing and will not be addressed further. In December 2020, the Veteran and his representative were notified that his appeal had been docketed at the Board, and that they had 90-days to submit additional evidence or argument. While the Veteran submitted additional statements, the representative did not submit any evidence or argument. As both were afforded the opportunity to present evidence or argument in support of the current appeal, the Board will proceed to adjudicate the claims on the merits. 38 C.F.R. § 20.5. Veterans Claims Assistance Act of 2000 (VCAA) The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Here, the RO requested that the Veteran either submit or authorize for release all private treatment records relevant to his appeal in November 2019. To date, the Veteran has not submitted the forms necessary to allow VA to obtain the records on his behalf nor has he submitted them himself. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that VA has made reasonable efforts to obtain any further outstanding private treatment records, and therefore the duty to assist with respect to obtaining private treatment records is satisfied. 38 C.F.R. § 3.159(c)(1). Neither the Veteran, the representative nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed to adjudicate the issues on appeal. Special Monthly Compensation SMC is an additional level of compensation paid to veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a veteran beyond the impairment of earning capacity, which is central to the Rating Schedule. 38 C.F.R. § 4.1. As it considers the interactive effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements. Basic levels of SMC are listed at 38 U.S.C. § 1114(k), with additional levels of SMC provided in 38 U.S.C. § 1114(l) through (t). Only the additional levels pertinent to the Veteran’s claim are discussed herein. The SMC rate payable under 38 U.S.C. § 1114(l) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b)(1)–(4). An individual is considered to be bedridden when the Veteran’s condition requires that he or she remain in bed. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). The fact that a Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day will not suffice to establish bedridden status. 38 C.F.R. § 3.352(a). When determining whether a Veteran requires aid and attendance, and therefore qualifies for the rate provided under 38 U.S.C. § 1114(l), the following factors must be considered: (1) inability to dress or undress, or to keep ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (3) inability of to feed himself or herself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or, (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. §§ 3.350(b)(3), 3.352(a). All of the above criteria need not be met in order for it to be determined that a Veteran requires aid and attendance. Id. Instead the functions which the Veteran is unable to perform should be considered in connection with the Veteran’s condition as a whole. Id. The SMC rate payable under 38 U.S.C. § 1114(m) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes rendering such Veteran so significantly disabled as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(c). The SMC rate payable under 38 U.S.C. § 1114(n) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. 38 C.F.R. § 3.350(d). The SMC rate payable under 38 U.S.C. § 1114(o) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms so near the shoulder as to prevent use of a prosthetic appliance or conditions entitling to two or more of the rates (no condition being considered twice) provided one of more of subsections (l) through (n), discussed above. Higher rates of SMC may also be paid pursuant to 38 U.S.C. § 1114(p), which allows for the assignment of either an intermediate rate or the next higher rate of SMC, even when a Veteran does not otherwise meet the criteria for that next higher rate. An intermediate rate is, essentially, “a half-step” increase in the level of SMC compensation being paid. The maximum allowable rate under subsection (p) is equivalent to the rate assigned under 38 U.S.C. § 1114(o). 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). An intermediate rate or the next higher rate of SMC may be assigned when certain conditions are met. 38 C.F.R. § 3.350(f). When a Veteran is in receipt of one of the rates payable under 38 U.S.C. § 1114(l) through (n) and has an additional disability ratable at 50 percent or more, the next higher intermediate rate should be assigned. 38 C.F.R. § 3.350(f)(3). The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from those disabilities establishing entitlement to the SMC rating under 38 U.S.C. § 1114(l) through (n). Id. Similarly, when a Veteran is in receipt of one of the rates payable under 38 U.S.C. § 1114(l) through (n) and has an additional disability independently rated at 100 percent, the Veteran should be assigned the next higher statutory rate under 38 U.S.C. § 1114 or, if already entitled to an intermediate rate, the next higher intermediate rate. 38 C.F.R. § 3.350(f)(4). Under no circumstances may a rate in excess of that allowable under 38 U.S.C. § 1114(o) be assigned. Id. SMC under subsection (r) provides a higher level of compensation if the Veteran is eligible for compensation under the maximum rate allowable under subsection (p) or subsection (o) and is in need of regular aid and attendance or a higher level of care. 38 C.F.R. § 3.350(h). Alternatively, a higher level of SMC under subsection (r) may also be paid if a Veteran is receiving compensation at the intermediate rate between subsections (n) and (o) and at the rate under subsection (k), and the Veteran requires a higher level of care which is considered to be from a licensed health care professional. 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h)(2), 3.352(b)(3). 1. Entitlement to a higher level of SMC. In this case, the Veteran is currently in receipt of the intermediate step between the rates provided in 38 U.S.C. § 1114(l) and 38 U.S.C. § 1114(m), pursuant to 38 U.S.C. § 1114(p). Specifically, the current intermediate step was awarded based on the fact that the Veteran’s psychiatric disability, on its own, warrants aid and attendance of another and the Veteran has another separate disability or disabilities rated at 50 percent or more. 38 C.F.R. § 3.350(f)(3). In accordance with the November 2019 Board remand, VA obtained medical opinions in December 2019 concerning the Veteran’s psychiatric and low back disabilities. Specifically, the opinions addressed whether the two disabilities, independently, necessitated aid and attendance. A December 2019 spine examiner noted that the Veteran’s low back disability was a significant contributor to his need to aid and attendance. In support of this conclusion, the examiner stated that the Veteran needed assistance with bathing and dressing due to an inability to bend, cooking and shopping due to limited mobility, and assistance transferring from bed to his wheelchair and back. 38 C.F.R. § 3.352(a). A December 2019 psychiatric examination stated that the psychiatric disability, on its own, warranted the need for aid and attendance. The examiner stated that the Veteran’s depression interfered with or precluded tending to personal hygiene, showering, dressing, preparing meals, grocery shopping, and generally protecting himself from the hazards in his everyday environment. Id. There is no evidence that the above examiners were either not competent or credible. Further, in both opinions the examiners clearly went through the criteria used to determine whether there is a need for aid and attendance and provided in depth discussions of each criterion. Id. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the disabilities during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, in support of his claim the Veteran has submitted several lay statements from himself, his spouse and other family members which attest to the ways in which his disabilities limit his ability to perform daily activities. Further, the Veteran has submitted numerous letters from private medical providers who have stated that the Veteran’s psychiatric disability and low back disability, independently of one another, are severe enough to require aid and attendance. Based on the foregoing, the Board finds that a higher level of SMC is warranted in this case. Throughout the period on appeal, the Veteran has been in receipt of a single 100 percent rating for his psychiatric disability. Further, the December 2019 spine examiner stated that the Veteran’s low back disability, on its own, required the aid and attendance of another. While the examiner noted that the back disability was a “major contributor” to the need for aid and attendance, the examiner also ultimately affirmatively stated “yes” to the Board’s question of whether the low back disability on its own rendered the Veteran so helpless as to need the regular aid and attendance of another. Further, as noted the Veteran was submitted several private opinions stating that the low back disability is independently severe enough to require the aid and attendance of another. As the Veteran was entitled to SMC pursuant to 38 U.S.C. § 1114(l) based on the fact that his low back disability resulted in the need for aid and attendance and the Veteran had a separate disability rated at 100 percent, the Board finds that the Veteran is entitled to the next higher intermediate rate pursuant to 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(4). Entitlement to higher levels of SMC in excess of that assigned herein is not warranted in this case. In reviewing the evidence of record, there is no evidence that the Veteran is blind in either or both eyes or deaf in either or both ears. Further, none of the medical evidence of record indicates that the Veteran has loss of use of either or both of his feet or hands, nor is there evidence of loss of use of any of the upper or lower extremities, with the most recent December 2019 VA spine examination noting that the Veteran did not have loss of use of the lower extremities despite the regular use of assistive devices such as a wheelchair. Further, neither the Veteran nor his representative have argued that he has loss of use of hands, feet or extremities, blindness, or deafness which would qualify him for the rates provided in subsections (l), (m), (n), or (o) of 38 U.S.C. § 1114, or any higher intermediate or next higher rates under subsection (p). 38 C.F.R. § 3.350(b)–(f). Further, while the Board has assigned the next higher intermediate rate under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4) herein, the maximum allowable rate under subsection (p) has not been assigned nor is the Veteran in receipt of the intermediate rate between subsections (n) and (o). 38 U.S.C. § 1114(o), (r). As such, higher rates of SMC based on these theories are not warranted. Throughout the period on appeal the Veteran has argued that he is entitled to a higher rate of SMC based on the fact that his low back disability and psychiatric disability, independently and separately of each other, result in the need for aid and attendance. He argues that he therefore qualifies for two of the rates prescribed under 38 U.S.C. § 1114(l), once for aid and attendance for the back and once for aid and attendance for the psychiatric disability. This would make him eligible for the rate prescribed in subsection (o), which in turn would make him eligible for the rate prescribed in subsection (r). Thus, the dispositive issue in this case is whether the rate provided pursuant to 38 U.S.C. § 1114(l) based on the need for aid and attendance may be awarded multiple times for different disabilities. As discussed above, a Veteran is entitled to SMC at the rate provided in 38 U.S.C. § 1114(o) when, as the result of service-connected disabilities, the Veteran has suffered disability which entitles him or her to two or more of the rates provide in one or more subsections (l) through (n). 38 U.S.C. § 1114(o). Thus, the statute allows for a single subsection, and the rate provided therein, to be used several times in order to attain the two or more rates necessary to meet the criteria for the rate provided in 38 U.S.C. § 1114(o). The statutory allowance that a single subsection may be used multiple times in order to qualify for SMC pursuant to 38 U.S.C. § 1114(o) is logical in light of that fact that each of the subsections at issue, specifically subsections (l) through (n), provide several different ways in which an individual may qualify for the specific SMC rate provided by that subsection. In other words, an individual could qualify for the same SMC rate under the same subsection multiple times under completely different theories. For example, an individual may qualify for the rate provided in 38 U.S.C. § 1114(l) in five different ways: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blind in both eyes; (4) permanently bedridden; or, (5) need of regular aid and attendance. Thus, a Veteran who had both the loss of use of both feet and was blind in both eyes would qualify twice for the rate provided in subsection (l) under wholly separate theories, and therefore be eligible for the SMC rate provided in subsection (o). 38 C.F.R. § 3.350(b). However, nothing in the statute or regulation allows for the award of aid and attendance based on different disabilities for the purposes of establishing entitlement to the rate provided in 38 U.S.C. § 1114(o). Neither the statute nor the regulation state that aid and attendance may be awarded multiple times based on individual disabilities. Instead, both the statute and the regulation simply provide that the SMC rate provided in 38 U.S.C. § 1114(l) may be awarded based on the “need for aid and attendance.” The plain meaning of this phrase is that a Veteran is to be compensated at the rate provided in subsection (l) when there is a factual need for aid and attendance generally. In other words, an award of SMC pursuant to 38 U.S.C. § 1114(l) is intended to compensate a Veteran for the need for aid and attendance that arises as the result of service-connected disability generally. In this vein, an award of SMC under subsection (l) based on aid and attendance is akin to an award of a total disability rating due to individual unemployability (TDIU). A TDIU is intended to compensate a Veteran for the inability to work arising from service-connected disability. While a Veteran may have several individual disabilities that on their own preclude the ability to work and such entitlement may be awarded based on only one disability or a combination thereof, entitlement to a TDIU is awarded only once as the intent of the award is to compensate the Veteran for the inability to work. Similarly, an award of SMC pursuant to 38 U.S.C. § 1114(l) is intended to compensate a Veteran for the need for aid and attendance based on service-connected disability and its resulting limitations with respect to functioning in everyday life. This interpretation is supported by 38 C.F.R. § 3.352, which provides the criteria for determining whether aid and attendance is necessary. 38 C.F.R. § 3.352(a). Much like the statutory and regulatory provisions governing the award of SMC at the (l) rate generally, the criteria contained in 38 C.F.R. § 3.352 are not disability specific. Instead, the criteria provided in 38 C.F.R. § 3.352 focus only on the actions or functions that a Veteran is or is not able to accomplish, regardless of the underlying service-connected disability or disabilities. Further, the regulation specifically states that a determination that aid and attendance is warranted should be made based on which particular functions the Veteran is unable to perform based on his or her condition as a whole. 38 C.F.R. § 3.352(a). Such a wholistic focus in determining whether or not a Veteran requires aid and attendance supports the conclusion that SMC at the rate provided under (l) based on the need for aid and attendance is intended to be awarded only one. Thus, based on the plain meaning of the statute and regulation, SMC pursuant to 38 U.S.C. § 1114(l) may not be awarded multiple times based on multiple distinct disabilities. Instead, it may only be awarded once based on the Veteran’s ability to function in light of his disability picture as a whole. Further, to find that the Veteran is entitled to aid and attendance based on independent disabilities would essentially constitute pyramiding. See 38 C.F.R. § 4.14. As discussed above, the purpose of 38 U.S.C. § 1114(l) is to compensate a Veterans based on the displayed factual need for the aid and attendance of another person in light of their overall disability picture, and not based on the underlying disability or disabilities. 38 C.F.R. §§ 3.350(b)(3), 3.352(a). Thus, to allow for the rate prescribed in 38 U.S.C. § 1114(l) multiple times based on aid and attendance would compensate the Veteran multiple times for the same underlying need, the need for the aid and attendance of another. Accordingly, the claim for entitlement to SMC at a higher rate than that assigned herein is denied. Neither the lay nor medical evidence reflect that the Veteran has blindness, deafness, or loss of use contemplated by any of subsections (l), (m), (n), (o), or (p) of 38 U.S.C. § 1114. Further, the statutes and regulations do not allow for the assignment of SMC pursuant to 38 U.S.C. § 1114(l) based on the need for aid and attendance for individual disabilities. Instead, the statute and regulation allow for the award of SMC under 38 U.S.C. § 1114(l) once based on the general need for the aid and attendance of another in light of the Veteran’s condition as a whole. 38 C.F.R. §§ 3.350(b)(3), 3.352(a). Neither the statute nor the regulation allows for the award of multiple rates based on the need for aid and attendance alone, and the plain meaning of the regulations governing the award of aid and attendance clearly reflect that it is intended to be awarded only once. Thus, the Veteran also does not meet the requirements for two or more of the rates provided in one of more of subsections (l) through (n), and is not eligible for SMC pursuant to 38 U.S.C. § 1114(o), and thus in turn is not eligible for SMC pursuant to 38 U.S.C. § 1114(r). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. New and Material Evidence Where a claim has been finally adjudicated, 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. 38 C.F.R. § 3.156(a). 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. Id. 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 possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms “new” and “material” for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, 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. 38 C.F.R. § 3.156(c). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. 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 in order 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. 2. Reopening of the claim for service connection for chest wall pain. The RO last denied entitlement to service connection for chest wall pain in November 1988, stating that there was no evidence of a diagnosed disability underlying the reports of chest pain. The Veteran was notified of the decision but did not file a notice of disagreement. 38 C.F.R. §§ 20.201, 20.302, 20.1103. No new, relevant service department records were associated with the file following the decision. 38 C.F.R. § 3.159(c); see Kisor, 969 F.3d at 1341–43. The Board notes that evidence was associated with the file during the one year period following the November 1988 rating decision. However, none of the added evidence relates to the previously unestablished fact of a current disability. The documents associated with the file between November 1988 and July 1989 concerning applications for dependents allowance, clothing allowance, and mileage allowances. Medical records from the Florida Department of Labor were associated with the file in September 1989, but these concern a work injury involving the Veteran’s back and left lower extremity and not the reported chest pain. The Veteran also submitted statements in September 1989, but these also concern only the low back and knee disabilities. Finally, a VA examination was added to the file in October 1989, but this also did not in any way discuss the Veteran’s reported chest pain, and instead only discussed the Veteran’s knee and back disabilities. As none of the evidence discusses the Veteran’s reports of chest pain or provides a diagnosis of an underlying disability, the added evidence is not material and therefore did not prevent the November 1988 rating decision from becoming final. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 1353–55 (Fed. Cir. 2020). The evidence of record in November 1988 consisted of the Veteran’s service treatment records, VA treatment records, a VA examination report and statements from the Veteran. Evidence received since the rating decision includes additional VA examinations, VA and private treatment records, and additional lay statements from the Veteran and his family members, including his August 2018 testimony before the undersigned. However, none of the added evidence reflects that the Veteran has a currently diagnosed disability underlying his complaints of chest pain or that the chest pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367–68 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 17–20 (2020). Treatment records reflect complaints of chest pain and a prescription for nitroglycerin, but this is cumulative as the evidence of record in November 1988 which reflected that the Veteran experienced chest pain. None of the treatment records associated with the file reflect a diagnosis of a cardiological or orthopedic disability underlying the reported chest pain. Likewise, VA examination reports associated with the file since the November 1988 rating decision do not reflect a formal diagnosis of a disability underlying the reports of chest pain, or that the chest pain results in functional impairment of earning capacity. The Board notes that both the Veteran and his representative, including during his August 2018 hearing testimony, have argued that his chest pain is associated with panic attacks. However, neither the Veteran nor his representative are competent to state that his panic attacks constitute a separately diagnosed psychiatric disability or that such a disability is secondary to his service-connected major depressive disorder. 38 C.F.R. § 4.125. Further, all of the psychiatric treatment records and examinations associated with the file note that the Veteran’s panic attacks are a symptom of the already service-connected major depressive disorder. Thus, the Veteran’s chest pain and panic attacks are already contemplated by the currently assigned rating for major depressive disorder. There is no evidence in the treatment records of a separately diagnosed panic disorder or disability which has been attributed to the Veteran’s major depressive disorder. Based on the foregoing, none of the submitted evidence relates to a previously unestablished fact necessary to support the Veteran’s claim for service connection, specifically the presence of a current disability underlying the reports of chest pain. As such, the Board finds that new and material evidence has not been submitted sufficient to warrant reopening of the Veteran’s claim for service connection for chest wall pain. 38 C.F.R. § 3.156(b). For these reasons, the Veteran’s claim to reopen is denied. 1. Reopening of a claim for service connection for an adjustment disorder. The RO last denied entitlement to service connection for an adjustment disorder in a rating decision issued in November 1988, stating that there was no evidence of a nexus between an adjustment disorder and service. The Veteran did not file a notice of disagreement, and no new, relevant service department records have been associated with the file. 38 C.F.R. §§ 3.156(c), 20.201, 20.302, 20.1103; see Kisor, 969 F.3d at 1341–43. As discussed above, several documents were associated with the file during the one year period following the November 1988 rating decision. However, the documents received between November 1988 and July 1989 concerned claims for dependent, clothing and gas allowances. While medical evidence was associated with the file between July 1989 and November 1989, these records dealt exclusively with the Veteran’s low back and lower extremity disabilities, and in no way addressed whether the adjustment disorder was related to service. 38 C.F.R. § 3.156(b); see Lang, 971 F.3d at 1353–55. As such, the November 1988 rating decision is final. The evidence of record in November 1988 consisted of the Veteran’s service treatment records, VA treatment records, a VA examination report and statements from the Veteran. Evidence received since the rating decision includes additional VA examinations, VA and private treatment records, lay statements from the Veteran and his family, and the August 2018 hearing testimony. However, none of the evidence added to the file reflects that the Veteran has a personality disorder that is causally related to his active service. Numerous VA medical opinions have linked the Veteran’s major depressive disorder to his period of service, but none of the opinions have stated that there is a separately diagnosed adjustment disorder that is also causally related to his service. Likewise, the Veteran’s treatment records do not contain any opinions linking an adjustment disorder to service. While some VA treatment records note a history of an adjustment disorder diagnosis, this diagnosis was at no point linked to service. Indeed, in an August 2012 VA treatment record it was noted that the previously diagnosed adjustment disorder had apparently resolved, with alternative and more likely diagnoses of dysthymia, bipolar illness and a personality disorder being provided. The Veteran, his family members, and his representative have all asserted that he has an adjustment disorder which is causally related to service. However, these assertions are not competent, as to provide such an etiological opinion requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As these statements are not competent, they are insufficient to warrant reopening of the claim for service connection for an adjustment disorder. Based on the foregoing, none of the submitted evidence relates to a previously unestablished fact necessary to support the Veteran’s claim for service connection, specifically the presence of a nexus between an adjustment disorder and the Veteran’s period of service. As such, the Board finds that new and material evidence has not been submitted sufficient to warrant reopening of the Veteran’s claim for service connection for an adjustment disorder. 38 C.F.R. § 3.156(b). For these reasons, the Veteran’s claim to reopen is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.