Citation Nr: 21026706 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-22 001 DATE: May 3, 2021 ORDER In the absence of new and material evidence, the petition to reopen a claim for compensation for a disability of the left lower extremity under the provisions of 38 U.S.C. § 1151 is denied. Service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. An unappealed April 2007 rating decision declined to reopen a claim for osteomyelitis of the left lower extremity under the provisions of 38 U.S.C. § 1151. 2. The evidence received since the April 2007 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for compensation for a disability of the left lower extremity under the provisions of 38 U.S.C. § 1151. 3. An acquired psychiatric disability did not originate in service or until years thereafter, and it is not otherwise etiologically related to, or aggravated by, service or to a service-connected disability. CONCLUSIONS OF LAW 1. The April 2007 rating decision declining to reopen a claim for osteomyelitis of the left lower extremity under the provisions of 38 U.S.C. § 1151 is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received sufficient to reopen the claim for compensation for a disability of the left lower extremity under the provisions of 38 U.S.C. § 1151. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Agency of Original Jurisdiction (AOJ). A September 2012 rating decision denied service connection for an acquired psychiatric disorder. An April 2013 rating decision declined to reopen the Veteran's claim for service connection for a disability of the left lower extremity under the provisions of 38 U.S.C. § 1151. In May 2016, the Veteran requested a hearing before the Board, but in September 2019, the Veteran withdrew this request, and he has not again requested the opportunity to participate in such a hearing. This matter was previously before the Board in March 2020, when it remanded the Veteran's claims in order to further develop the medical evidence of record. The AOJ has substantially complied with its March 2020 remand directives, and it will proceed to a decision. The Board additionally remanded the issue of service connection for tinnitus, and in September 2020, the AOJ granted this claim. The Board will not further consider the claim for service connection for tinnitus because the AOJ's September 2020 rating decision granted the Veteran's claim in full. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). New and Material Evidence Decisions of the AOJ and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). When a veteran suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA medical treatment, disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the treatment, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). In this case, the Veteran incurred extensive electrical burns to his right lower extremity in May 1972. Between approximately March 1974 and August 1974, the Veteran underwent a number of pedicle skin grafting procedures at a VA Medical Center (VAMC) that removed skin from the left lower extremity for the purpose of treating the electrical burns of the right lower extremity. In August 1974, the Veteran developed an infection of the left lower extremity at one of the surgical pin sites associated with these procedures. In January 1975, it was noted that the Veteran continued to experience swelling and drainage from this pin site, and a clinician assessed the Veteran with osteomyelitis affecting the left leg. The Veteran received treatment for this condition throughout 1975, and in December 1975, the Veteran experienced a pathologic fracture of the left tibia as a result of his osteomyelitis. In January 1976, the Veteran filed a claim for service connection for a left leg disability. In May 1976, the Veteran argued that his disability resulted from the "inept medical practices" of the VAMC. In August 1977, a VA clinician opined that the Veteran had not suffered an additional disability as the result of his treatment at the VAMC. The clinician opined that the treatment that the Veteran received was not negligent, noting that the Veteran's development of osteomyelitis was a known complication of the Veteran's approved treatment. A November 1977 rating decision denied the Veteran's claim for compensation under 38 U.S.C. § 1151 (formerly § 351) on the merits, finding no evidence of negligence in the care that the Veteran received from the VAMC. The evidence under consideration at the time of the November 1977 rating decision explicitly included the above-discussed records from the VAMC and medical opinion finding that no negligence was involved in the Veteran's treatment. The Veteran was notified of the decision and of his appellate rights, but he did not appeal the November 1977 rating decision, and no pertinent evidence was received within one year of the November 1977 rating decision. Therefore, the November 1977 rating decision is final. In April 2006, the Veteran filed a petition to reopen this claim, and an April 2007 rating decision denied the claim, finding that the Veteran had not submitted new and material evidence. The Veteran was notified of the decision and of his appellate rights, but he did not appeal the April 2007 rating decision, and no pertinent evidence was received within one year of the April 2007 rating decision. Therefore, the April 2007 rating decision is final. The evidence added to the record since the final April 2007 rating decision is insufficient to reopen the Veteran's claim for compensation for a disability of the left lower extremity under the provisions of 38 U.S.C. § 1151. The Veteran filed his current claim in April 2012. In March 2013, a VA clinician opined that the type of infection that the Veteran suffered is a known complication of skin grafting surgery. The clinician additionally observed that the Veteran had a history of alcoholism, which can cause immunosuppression that increases susceptibility to infection. The Board remanded the Veteran's claim in March 2020 in order to ensure that all pertinent medical treatment records had been associated with the evidentiary record. Following the Board's remand, VA obtained additional records relating to the Veteran's claim for disability benefits from the Social Security Administration (SSA). These medical records show, for example in March 2014 and April 2014, that the Veteran received treatment for flare-ups associated with chronic osteomyelitis of the left leg. The Board's remand also noted that VAMC records relating to the Veteran's 1974 surgical procedures were not currently contained within the Veteran's claims file. Following the Board's remand, such records were incorporated into the evidentiary record. Upon review of this evidence, while some new evidence has been added to the record, none of the evidence is material because it does not relate to an unestablished fact necessary to substantiate the claim. More specifically, the evidence added to the record does not show that the Veteran suffered an additional disability as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VAMC's part, or an event not reasonably foreseeable. Medical treatment records added since the final April 2007 rating decision are not material because they show only that the Veteran continued to receive treatment for chronic osteomyelitis. The Veteran's treatment for chronic osteomyelitis is not in dispute; indeed, the November 1977 rating decision explicitly found that the Veteran indeed had osteomyelitis. While VAMC records associated with the Veteran's 1974 procedures were administratively associated with the Veteran's electronic record pursuant to the Board's March 2020 remand, such evidence is not new because it was explicitly considered in the November 1977 rating decision denying the Veteran's claim on the merits. Beyond filing the April 2012 petition to reopen a claim for benefits for osteomyelitis, the Veteran has not advanced any arguments with regard to his claim. At a March 2014 hearing before the AOJ, the Veteran expressly declined to present testimony regarding this claim. Regardless, arguments submitted by the Veteran are not new evidence for the purpose of reopening a claim. See Bostain v West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by the decision maker at time of prior final disallowance of the claim is not new evidence). To the extent the Veteran has advanced an argument by simply filing this claim, this evidence merely repeats the same evidence that was of record at the time of the previous final denial, and it does not constitute the presentation of new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). In the absence of new and material evidence, the Veteran's petition to reopen his claim for compensation for a disability of the left lower extremity under the provisions of 38 U.S.C. § 1151 is denied. Service Connection The Veteran has claimed that he has an acquired psychiatric disability as the result of residuals of electrical burns that he suffered during service. VA does not have a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA's obligation to provide a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the claimed disability may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As is discussed in greater detail below, while the evidence shows that the Veteran has an acquired psychiatric disability, the evidence does not indicate that he experienced an in-service injury, event, or disease that might have resulted in such disability. The evidence of record is thus insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183 (1993). To establish service connection on a secondary basis, there must be evidence of a current disability, a service connected disability, and medical evidence of a nexus between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The record shows that the Veteran has been diagnosed with an acquired psychiatric disability since filing his April 2012 claim for service connection. For example, in March 2013, a clinician diagnosed the Veteran with anxiety disorder not otherwise specified. While the Veteran has a current disability, the weight of the evidence is against a finding that the Veteran experienced an in-service event, injury, or disease relating to such disability. In this regard, the Veteran has consistently argued that his acquired psychiatric disability relates to the electrical burn injuries that he suffered during service. It is undisputed that the Veteran suffered extensive burn injuries in May 1972. In March 2020, however, the Board denied the Veteran's claim for service connection for residuals of these electrical burns, finding that such injury occurred as a result of the Veteran's own willful misconduct. The Veteran has not otherwise identified an in-service event, injury, or disease relating to his acquired psychiatric disability. Instead, the Veteran has only broadly suggested that his acquired psychiatric disability is directly related to service. For example, in November 2019, the Veteran's representative stated that "the possibility of a direct connection [of the Veteran's acquired psychiatric disability] to service has never been considered". In this regard, the Board notes that the Veteran's service treatment records are negative for any complaints of, or treatment for, psychiatric symptoms. Consistent with this finding, during his March 2014 hearing before the AOJ, the Veteran denied receiving any in-service treatment for an acquired psychiatric disability. The Veteran has not identified an in-service event, other than the burn injury that has been found to have resulted from willful misconduct, that resulted in an acquired psychiatric disability. The Board thus finds that the weight of the evidence is against a finding that the Veteran experienced an in-service incident that led to his development of an acquired psychiatric disability. The second Shedden element is not met, and the Veteran's claim fails on this basis alone. The Veteran's claim for service connection for an acquired psychiatric disability is similarly denied on a secondary basis because the Veteran does not have a relevant service-connected disability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.