Citation Nr: 21021186 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-19 134A DATE: April 12, 2021 ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for a neck disability. Entitlement to service connection for a left arm neurological disorder is denied. Entitlement to service connection for a left facial neurological disorder is denied. Entitlement to service connection for a heart disability is denied. FINDINGS OF FACT 1. In a final October 2010 rating decision, the RO denied the Veteran’s claim for service connection for a neck disability. 2. Evidence received since the October 2010 rating decision, while new, is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a neck disability. 3. Neither a left arm or a left facial neurological disorder was caused or aggravated by active duty or of active duty for training, nor are they shown to have initially manifested within a year of discharge from active duty; neurological symptoms initially manifested prior to a period of training, they were not shown to have increased in severity during active duty for training, nor are they secondary to a service connected disability. 4. A heart disability is not shown. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a neck disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). 2. The criteria for service connection for a left arm neurological disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a left facial neurological disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from October 1975 to January 1976, and from February 2003 to February 2004. He also served in the Puerto Rico Army National Guard until 2017, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). In February 2019 the Board remanded the issues on appeal for additional development, which has been completed. The Board notes that the appeal had also originally included a claim for service connection for a back disability. However, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted that appeal in a November 2020 rating decision. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has submitted a notice of disagreement with the initial ratings or effective dates assigned. Thus, that matter is not in appellate status. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). New and Material Evidence Claim Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed October 2010 rating decision, the RO denied service connection for a neck disability because the claimed disorder was note shown to be caused or aggravated during a period of qualifying service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the October 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. At the time of the October 2010 rating decision, the evidence of record consisted of service treatment records, which failed to document a neck disorder during a period of active duty or a period of ACDUTRA. On periodic examinations and reports of medical history in April 1986, March 1991, March 1996, December 2000 and February 2006, the Veteran’s spine and neck were clinically evaluated as normal. Treatment records in June 2010 noted complaints of neck pain. Imaging studies of the cervical spine were unremarkable. The evidence received subsequent to the October 2010 rating decision includes, in pertinent part, VA treatment records that document a neck disability, including mild degenerative changes and myofascial pain of the cervical spine with a history of onset of pain many years earlier. Also added to the records is the Veteran’s service personnel records which fail to show a neck disorder caused or aggravated during a period of active duty or a period of ACDUTRA or that the neck disability resulted from an injury incurred during a period of INACDUTRA. This evidence is not material to that claim and some of it provides evidence against the claim. The Board has also considered lay statements asserting that he developed a neck disability as due to service. However, the lay statements are simply a reiteration of previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. He is simply repeating the prior claim. In any event, it is important for the Veteran to understand that event if the Board found new and material evidence, that new evidence (as cited above), would provide a basis to deny the claim once again. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Accordingly, the Veteran’s petition to reopen the claim for service connection for a neck disability is denied. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the Veteran’s ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Claims based on a period of ACDUTRA or INACDUTRA are never entitled to the presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 nor are they entitled to the presumption of aggravation. Smith v. Shinseki, 24 Vet. App. 40 (2010). Appellants who established veteran status for a prior period of service may be entitled to the presumption of soundness for a subsequent period of service under certain conditions. Id. at 45-46. For claims based on aggravation of a pre-existing condition during a period of ACDUTRA or INACDUTRA, the appellant must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training. Id. at 48. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). 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). 1. Entitlement to service connection for a left arm neurological disorder 2. Entitlement to service connection for a left facial neurological disorder The Veteran asserts that he developed neurological disorders manifested by paralysis and numbness affecting the left arm and left side of his face, as a result of service. The Veteran reported that he suffered a heat stroke on June 8, 2015, while getting ready to go to on weekend training. He has also claimed service connection for the neurological disorders as secondary to a heart disability. Initially, the Board notes that pursuant to the most recent Board remand, the RO confirmed that the record does not reflect active duty service in Southwest Asia for purposes of 38 C.F.R. § 3.317 (e)(2). Accordingly, as the Veteran does not meet the definitions of qualifying service under 38 C.F.R. § 3.317, the Board cannot further contemplate any provisions of service connection under this section, as the provisions of this section are not applicable in the case at bar. The service treatment records contain no complaints, history or findings consistent with a neurological disorder affecting the left arm and left side of his face. On periodic examinations and reports of medical history in April 1986, March 1991, March 1996, December 2000, the Veteran’s face, upper extremities and neurological systems were clinically evaluated as normal. On examination in February 2006, his face, upper extremities and neurological systems were clinically evaluated as normal. The evidence shows that the Veteran had activation orders for annual training from June 13, 2015 to June 27, 2015. However, a few days prior to activation, the Veteran was hospitalized at a private facility for approximately seven days with symptoms of left hand and left facial numbness. The assessment was acute small lacunar infarct. The Veteran was discharged home after symptoms disappeared with statin and ASA therapy. However, on July 2015, the Veteran was admitted to VA with a diagnosis of cerebrovascular accident (CVA) after his symptoms returned. The evidence of record does not reflect that the Veteran suffered from neurological problems or CVA, during the Veteran’s first period of service, a neurological disability was not shown in service or within one year following discharge from service. Additionally, there is no indication that CVA or a neurological disability developed or was aggravated during a period of duty. The only evidence of record in support of a nexus between the claimed disorders and service, is the Veteran’s lay opinion. To the extent that they are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. The Veteran has not been shown to possess specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, the Veteran’s assertions as to a relationship between his neurological problems affecting the left arm and left side of his face and service are of little probative value. Significantly, the Veteran’s argument in support of the claims concedes that the conditions preceded his activation orders for duty from June 13, 2015 to June 27, 2015. A VA examination or medical opinion regarding the etiology of his currently diagnosed neurological problems affecting the left arm and left side of his face was not indicated as there is no suggestion that the Veteran’s current disabilities may be associated with service. Simply stated, the service and post-service evidence of record provides particularly negative evidence against all claims, indicating problems that while not in duty status. To the extent the Veteran seeks service connection for his neurological disorders as secondary to a heart disability, as further discussed below, service connection for a heart disability has not been established and there is no legal basis upon which to award service connection on a secondary basis. See 38 C.F.R. § 3.310. Given the foregoing, the Board finds that the preponderance of the evidence is against the claims for service connection for neurological problems affecting the left arm and left side of his face and that the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to service connection for a heart disability The Veteran seeks service connection for a heart disability. The service treatment records fail to document a heart disability. On periodic examinations and reports of medical history in April 1986, March 1991, March 1996, December 2000 and February 2006, the Veteran denied a history of heart trouble, and his heart was clinically evaluated as normal. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has a heart disability. Nor has the Veteran indicated that he has been provided treatment at a VA facility for the claimed condition or identified private treatment records regarding the claimed disorder. Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability.”); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.:). See, too, Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Simply stated, the best evidence in this case provides evidence against the existence of a heart disability at any time during the period on appeal. The Board has considered the Veteran’s assertions regarding the existence of a heart disability. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, his statements do not rise to a level of competency to offer an opinion as to the existence of a current diagnosis or etiology. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the etiology of the Veteran’s claimed heart disability requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have training, expertise, or skills needed to make such a determination. As a result, the probative value of his lay assertions is low. The Board notes that the Veteran was not afforded VA examination for his claimed heart disorder. As there is no evidence of a diagnosis of a disability, much less one associated with service, the claim does not meet the requirements for obtaining a VA medical examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a heart disability. The benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.