Citation Nr: 21022289 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-16 283 DATE: April 15, 2021 ORDER New and material evidence having not been submitted, the application to reopen the claim of entitlement to service connection for a heart disability is denied. Service connection for a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. A July 2004 rating decision denied the Veteran’s service connection claim for a heart disability. Although the Veteran was notified of the decision, he did not appeal. 2. The evidence submitted by the Veteran subsequent to the July 2004 rating decision in support of reopening his service connection claim for a heart disability does not relate to a previously unestablished fact necessary to substantiate the claim. 3. The preponderance of probative evidence of record does not demonstrate that the Veteran has been diagnosed with a traumatic brain injury (TBI) at any time during the period on appeal. CONCLUSIONS OF LAW 1. The July 2004 rating decision is final. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 20.1100, 20.1103 (2020). 2. New and material evidence sufficient to reopen the claim of service connection for a heart disability has not been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111 (2012); 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309 (2020). 3. The criteria for service connection for a traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Marine Corps on Active Duty for Training (ACDUTRA) from July 1972 to January 1973, with additional service in the Marine Corps Reserves from January 1973 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran withdrew his initial hearing request in November 2016. See 38 C.F.R. § 20.704(e). In October 2018, the Board remanded this appeal for further development, including procuring additional treatment records and military records, and scheduling the Veteran for a VA examination. To the extent that the directed authorization request was mailed to the Veteran, and the directed service records, treatment records, and VA examination report have been obtained, the Board finds that substantial compliance with its remand directives has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. New and material evidence having not been submitted, the application to reopen the claim of entitlement to service connection for a heart disability is denied. Rating decisions from which an appeal is not perfected become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 C.F.R. § 20.200. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the AOJ has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim requires consideration of whether the newly submitted evidence could reasonably substantiate any previously unestablished element of the claim were it to be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). However, finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected. See Bingham v. Nicholson, 421 F.3d 1346, 1348-50 (2005). Accordingly, a new theory of causation for a disease that was the subject of a previously denied claim cannot be the basis of a new claim absent a presentation of new and material evidence or of clear and unmistakable error. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); 38 U.S.C. §§ 7103(a), 7104(a), (b), 7111(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran contends that he has submitted new and material evidence sufficient to warrant reopening of his service connection claim for a heart disability; however, for the reasons set forth below, the Board disagrees and finds that no new and material evidence has been submitted sufficient to warrant reopening the Veteran’s heart disability claim. As stated above, the Veteran’s service connection claim for a heart disability was previously denied in a July 2004 rating decision on the grounds that the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses of a heart disability, and that the record lacks evidence of a nexus between the Veteran’s current heart diagnosis and his active military service. Although the Veteran was notified of the July 2004 rating decision denying his claim, he did not appeal the decision. Although additional service personnel records were later added to the record in 2010 and 2012 and 2019, they were not relevant to the issue. Accordingly, the July 2004 rating decision became final in July 2005. See 38 C.F.R. § 20.1103, 20.200. The evidence of record at the time of the July 2004 rating decision consisted of the following: (1) the Veteran’s STRs; and (2) the Veteran’s private treatment records from Emory University Hospital dated May 2003 to December 2003, reflecting a diagnosis of cardiomyopathy and a history of congestive heart failure. In August 2010, the Veteran filed an application to reopen his service connection claim for a heart disability; subsequently, a June 2012 rating decision denied the Veteran’s request to reopen his heart disability claims on the grounds that no new and material evidence had been submitted sufficient to reopening the reopening of the claim. In response to the June 2012 rating decision, the Veteran submitted additional private treatment records from Emory University Hospital, dated January 2004 to June 2010 and November 2012 to December 2012, and additional VA treatment records were uploaded to the Veteran’s claims file. The Board notes that the additional treatment records confirm the Veteran’s diagnosis of a current heart disability, to include cardiomyopathy, but do not address the issue of a nexus between the Veteran’s current heart disability and his active military service. Therefore, the Board finds that the additional treatment records submitted since the July 2004 rating decision do not relate to the previously unestablished but required elements of an in-service incident or a nexus between the Veteran’s current heart disability and his active military service. See Shade, 24 Vet. App. at 121. Accordingly, in light of the foregoing, because the Veteran’s additional treatment records submitted since the July 2004 rating decision do not constitute material evidence, as they do not relate to and thus could not reasonably substantiate the previously unestablished element of the Veteran’s service connection claim for a heart disability, the Board finds that no new and material evidence has been submitted, and the Veteran’s application to reopen his heart disability claim must be denied. See 38 U.S.C. § 7104(b); 38 C.F.R. § 3.156(a). 2. Service connection for a traumatic brain injury (TBI) is denied. Service connection is warranted where the evidence of record demonstrates 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 pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service-connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). The threshold question for every service connection claim involves whether the veteran has established evidence of the disability for which service connection is sought; in the absence of such proof, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Where the evidence relating to the benefits sought is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The Veteran contends that he is entitled to service connection for a TBI sustained during his active military service. However, after careful review of the competent lay and medical evidence of record, the Board finds that such evidence is insufficient to establish a current diagnosis of a TBI, and, therefore, the Veteran’s service connection claim for a TBI must be denied. In January 2020, the Veteran was afforded a VA examination which culminated in a report finding that the Veteran does not have a current diagnosis of a TBI. Moreover, based on a thorough review of the record, the Board notes that the Veteran’s VA and private treatment records do not contain any evidence that the Veteran has ever been diagnosed with a TBI or related neurological condition. The Board has also considered the lay statements provided by the Veteran contending that he suffers from a TBI; however, while the Board does not doubt that the Veteran is sincere in his belief that he suffers from a TBI incurred during service, it finds that as a lay person, the Veteran does not possess the education, training, or experience to competently opine on the matter. See 38 C.F.R. § 3.159(a)(2). Although lay testimony may be competent to establish the presence of observable symptomatology supporting a claim of service connection, it is only sufficient to establish a diagnosis of a condition where (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). In this case, the Board finds that although lay persons are competent to provide opinions on certain medical issues, the diagnosis of neurological impairment, is a complicated medical condition not capable of lay diagnosis, particularly in a case like the present one where neurological symptoms are at issue. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Moreover, the record in this case is devoid of any evidence that the Veteran possesses the necessary skills, training, or experience to identify and diagnose the presence of a TBI, or of a contemporaneous medical diagnosis of such comporting with VA regulations. See Jandreau, 492 F.3d at 1377. Accordingly, the Board finds that the Veteran’s lay statements lack the competency required to establish the presence of a TBI at any time during the period on appeal. There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and that he is sincere in his belief that he has a diagnosis of TBI that is related to his active military service. However, the Board has carefully reviewed the record in depth and has been unable to identify a basis upon which service connection may be granted for a TBI. Accordingly, in light of the foregoing, the Board finds that a preponderance of the competent and credible evidence of record weighs against the Veteran’s claim for service connection for a TBI; therefore, the benefit of the doubt doctrine does not apply to this claim, and service connection for a TBI is not warranted in this case. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-54. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.