Citation Nr: 21024370 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-17 096 DATE: April 22, 2021 ORDER As new and material evidence has not been received, the petition to reopen the claim of entitlement to service connection for a back condition is denied. Entitlement to service connection for Huntington’s disease is denied. REMANDED Entitlement to a compensable disability rating for service-connected left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran did not submit a Notice of Disagreement (NOD) or Substantive Appeal (VA Form 9 or equivalent statement) in response to an October 2008 rating decision previously considering and denying his claim of entitlement to service connection for a back condition. 2. The additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is cumulative and redundant of the evidence of record at the time of that last prior final and binding denial of this claim and does not raises a reasonable possibility of substantiating this claim for service connection for a back condition. 3. The Veteran’s Huntington’s disease did not initially manifest during his service or within one year of his separation from service and is not otherwise shown to be related or attributable to his service. CONCLUSIONS OF LAW 1. The October 2008 rating decision that earlier considered and denied the Veteran’s claim for service connection for a back condition is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). 2. The additional evidence received since that October 2008 rating decision is not new and material, and this claim of entitlement to service connection for a back condition thus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria are not met for entitlement to service connection for Huntington’s disease. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to May 1984. The Veteran was scheduled to testify at a hearing in September 2019 before a Veterans Law Judge (VLJ) of the Board of Veterans’ Appeals (Board/BVA); however, he did not attend the hearing. Therefore, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2018). In this circumstance, without justifiable explanation (“good cause”) for his absence, the Board is not obligated to offer him another opportunity for a hearing. New and Material Evidence 1. As new and material evidence has not been received, the petition to reopen the claim of entitlement to service connection for a back condition is denied. Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed – unless inherently incredible or beyond the competency of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010).   Regardless of the local Regional Office’s (RO’s) determination as to whether new and material evidence has been received, the Board must address this issue preliminarily, so in the first instance, because this initial determination affects the Board’s jurisdiction to reach the underlying claim to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and readjudicate it in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). But, once the claim is reopened, the presumption of credibility regarding this evidence no longer applies. Id. at 513. If, on the other hand, the Board determines there is not the required new and material evidence to reopen the claim, that is where the analysis ends because further consideration of the claim is neither required nor permitted. See Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). The "starting point" for determining whether new and material evidence since has been submitted or otherwise obtained to warrant reopening this claim and readjudicating it on its underlying merits (i.e., on a de novo basis) is the last final and binding denial of this claim – irrespective of whether on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). The Board finds that the required new and material evidence has not been received to reopen this claim for service connection for a back condition. The RO considered and denied this claim in October 2008, finding that the Veteran did not have a then currently diagnosed back condition that was incurred in or caused by his military service. Since that rating decision previously considering and denying this claim, which he did not appeal, he has submitted additional VA treatment records and private treatment records. However, these records only document his ongoing complaints and treatment for back pain. None of these records express any opinion as to the nature or etiology of his back pain – including especially in terms of tending to support the posited correlation between this condition and his service.   The Federal Circuit Court has held that, according to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not previously been presented to the Board. See Anglin v. West, 203 F. 3d 1343, 1347 (Fed. Cir. 2000). The Board is cognizant of the Court’s ruling in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), which held that pain alone can constitute a ratable disability. However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.” Id. Here, although a preliminary review of the medical evidence at least suggest the Veteran’s back pain is potentially severe enough to reach the level of functional impairment of earning capacity, none of this evidence suggests his back condition is the result of his military service. See 38 C.F.R. § 3.156(a); see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Furthermore, a February 2014 VA compensation examiner concluded that the Veteran’s back condition was not incurred in or caused by his military service. Consider also that, even without the benefit of that medical opinion, VA is not required to provide a medical examination to a Veteran seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. 38 C.F.R. § 3.159(c)(4)(iii). And this is true even considering the lesser standard of requesting an examination upon reopening of the claim that was discussed in Shade. Moreover, any question as to the adequacy of a VA examination is moot prior to reopening of the claim. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Consequently, the additional evidence received or otherwise obtained since the last final and binding denial of this claim does not raise a reasonable possibility of substantiating this claim. 38 C.F.R. § 3.156(a). Accordingly, the standards under 3.156(a) are not met as there is no evidence of record tending to support the posited correlation between the Veteran’s back condition and his service. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen this claim must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection 2. Entitlement to service connection for Huntington’s disease Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of relevant injury or disease, and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (e.g., organic diseases of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Here, it is not in dispute that the Veteran has the requisite diagnosis of Huntington’s disease. There still must be indication, however, this condition started during his service, within a year of his discharge, or is otherwise related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). And, unfortunately, the Board finds that the preponderance of the evidence is against this notion. There is no probative (meaning competent and credible) evidence that the Veteran’s Huntington’s disease is related directly to an event, injury or disease during his service. During his July 1976 military enlistment examination, clinical evaluation of his neurologic system was normal. In addition, he denied any history of neurological problems in his medical history report. The remainder of his STRs similarly are entirely unremarkable for any complaints, treatment, or diagnoses of neurological impairment. His service ended in May 1984. The same is true for during the one-year presumptive “grace” period following conclusion of the Veteran’s service permitting an initial manifestation of Huntington’s disease to a compensable degree (meaning to at least 10-percent disabling). Nothing of the sort occurred before May 1985. Indeed, to the contrary, there are no complaints, treatment, or diagnoses of Huntington’s disease until many decades after the Veteran’s service. In fact, the first post-service record pertaining to his Huntington’s disease is a May 2012 Neurology Outpatient Movement Disorder Consultation Note, which is dated some 28 years after his separation from service and indicates a diagnosis of Huntington’s disease was strongly suspected. But there is not suggestion that prior medical history dated back to his time in service. The prolonged period following service without medical complaint can be considered, along with other factors concerning a Veteran’s health and medical treatment during and after his military service, as evidence of whether an injury or disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence – including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts. Maxson at 1333; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board’s denial of service connection where the Veteran-claimant had failed to account for the lengthy time period after service before initial indication of symptoms of the now-claimed disability).   In addition, there is no probative evidence in the record suggesting the Veteran’s Huntington’s disease was incurred in service and/or etiologically related to his military service. In response to a service connection claim, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran’s service or with a service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). But, regarding this claim, no medical examination or opinion has been obtained. Nevertheless, there is no such obligation. The Board finds that the evidence of record does not satisfy the standards of McLendon because there is no credible indication of a potential relationship between this claimed disability and the Veteran’s military service. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that VA is not required to provide a medical examination when, as in this case, there is no credible evidence of an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). VA is not required to schedule an examination for a medical opinion merely as a matter of course, such as just because the Veteran alleges he has a claimed disability or asserts there is a relationship between his claimed disability and his military service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone). This is especially true where the particular condition at issue is not the type that is readily amenable to mere lay diagnosis or probative lay comment regarding its etiology, so in turn potential relationship to or with the Veteran’s military service. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Federal Circuit Court held that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But the Federal Circuit Court went on to clarify in Waters that a Veteran’s conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination, since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case. Therefore, the Board finds that a remand for an examination and opinion is not necessary to decide this claim. See 38 C.F.R. § 3.159(c)(4). In deciding this claim, the Board also has considered the Veteran’s personal statements – including in terms of recounting the history of this disease. He is competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he has not conversely been shown to possess any pertinent medical training or credentials that would make him competent to establish that his Huntington’s disease dates back to his time in service or is otherwise related or attributable to his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds that the elements of service connection have not been met. The most probative (meaning most competent and credible) evidence, particularly the medical evidence, does not tend to show the Veteran had Huntington’s disease during his service, within a year of his discharge, or that it is otherwise related or attributable to his service. 38 C.F.R. § 3.303(d). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim of entitlement to service connection for Huntington’s disease is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to a compensable disability rating for service-connected left ear hearing loss is remanded. The Veteran last had a VA compensation examination for his service-connected left ear hearing loss in February 2014, so over 7 years ago. When available evidence is too old for an adequate evaluation of a Veteran’s disability, VA’s duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that the February 2014 VA examination is unduly remote, and there is insufficient medical evidence on file from which the Board can accurately determine the current severity of the Veteran’s left ear hearing loss. As such, a new examination is warranted. Accordingly, this claim is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records, whether VA or private, pertinent to his claim for a higher (compensable) rating for his left ear hearing loss. If he provides the amount of information needed, obtain the records that he identifies as possibly relevant this claim, following proper procedures, and appropriately notify him and his representative if unable to obtain records that are identified. See 38 C.F.R. § 3.159(c) and (e). 2. After obtaining all additional treatment or other records pertinent to this claim, arrange for the Veteran to undergo another VA audiological examination reassessing the severity of his service-connected left ear hearing loss. A copy of this decision and remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and undertake all indicated testing and evaluation. Also, in reassessing the severity of this disability, the examiner is asked to address the extent to which the consequent functional impairment impairs the Veteran’s ability to meet the demands of a substantially gainful job, whether sedentary or physical, and the timeframe in which this impairment arose. It is essential the examiner provide rationale for all opinions expressed, whether favorable or unfavorable to the claim, preferably citing to objective findings during the evaluation, other supporting evidence in the file, and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.