Citation Nr: 21040217 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-24 423 DATE: July 2, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a neck disability is denied. The petition to reopen the previously denied claim of entitlement to service connection for a right shoulder disability is denied. The petition to reopen the previously denied claim of entitlement to service connection for chronic fatigue syndrome is denied. The petition to reopen the previously denied claim of entitlement to service connection for irritable bowel syndrome is denied. The petition to reopen the previously denied claim of entitlement to service connection for tinnitus is denied. The petition to reopen the previously denied claim of entitlement to service connection for a testicular disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. A March 2017 rating decision that denied the claims of entitlement to service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability was not appealed, and new and material evidence was not received prior to expiration of the appeal period. 2. Since March 2017, the Veteran submitted evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claims. CONCLUSION OF LAW The March 2017 rating decision denying the claims for service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability is final; and new and material evidence has not been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1984 to May 1987, from January 2002 to May 2002, and from June 2004 to November 2005. The Veteran is a Persian Gulf veteran as he had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 and March 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's substantive appeal failed to select an optional Board hearing preference. Additionally, there has been no response, from either the Veteran or his representative, to a March 2021 Board letter requesting clarification of the Veteran's optional Board hearing preference. That letter notified the Veteran and his representative that failure to reply to the letter will result in a Veterans Law Judge deciding your appeal based on the evidence of record. The Veteran and his representative are reminded that a request for a hearing must be made within 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first. 38 C.F.R. § 20.1305. The Board has recharacterized the Veteran's claim for PTSD more broadly as a claim for an acquired psychiatric disorder, to include PTSD and depressive disorder, to more broadly reflect that the Veteran seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the 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 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). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for neck disability. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for right shoulder disability. 3. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for chronic fatigue syndrome. 4. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for irritable bowel syndrome. 5. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for tinnitus. 6. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for testicular disability. Issues 1 6: The Veteran filed a request to reopen the previously denied claims of entitlement to service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability in February 2018. See VA 21-526EZ, Fully Developed Claim (February 2018). The issue in this appeal is whether new and material evidence has been received to reopen the previously denied claims for service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability. The Board concludes that the March 2017 rating decision in which the RO denied the claims for service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability is final. The Board further concludes that new and material evidence has not been received to reopen the claims. In this case, a December 2009 rating decision denied service connection for, amongst other claims, (1) neck disability, (2) right shoulder disability, (3) tinnitus, and (4) testicular disability because the evidence showed no chronic or residual disability from the in-service complaints for those claimed disabilities, and (5) chronic fatigue syndrome and (6) irritable bowel syndrome because the disabilities did not have their onset during service and no nexus opinion relating those disabilities to service was provided. VA notified the Veteran of this decision in a January 2010 letter and how to appeal. Although VA received an appeal for the denied claim of entitlement to service connection for PTSD, no appeal or new and material evidence was received prior to expiration of the appeal period for the claims of entitlement to service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability. Therefore, the December 2009 rating decision became final as to the claims of entitlement to service connection for (1) neck disability, (2) right shoulder disability, (3) chronic fatigue syndrome, (4) irritable bowel syndrome, (5) tinnitus, and (6) testicular disability. A July 2014 rating decision denied reopening the previously denied claims as no new and material evidence was received. A March 2017 rating decision reopened the previously denied claims, without identifying the new and material evidence received, but denied service connection for (1) neck disability because the disability did not have its onset during service, arthritis was not shown within one year of service separation, and no nexus opinion was provided, (2) right shoulder disability because the evidence showed no chronic or residual disability from the in-service complaints for the disability, arthritis was not shown within one year of service separation, and no nexus opinion was provided, (3) chronic fatigue syndrome on a presumptive basis because the disability is due to sleep disturbances from musculoskeletal disabilities, and on a direct basis because the disability did not have its onset during service and no nexus opinion was provided, (4) irritable bowel syndrome on a presumptive basis because the disability was not a chronic disability, and on a direct basis because the disability did not have its onset during service and no nexus opinion was provided, (5) tinnitus because the evidence showed no chronic or residual disability from the in-service complaints and no current diagnosis, and (6) testicular disability because the evidence showed no chronic or residual disability from the in-service complaints and no nexus opinion was provided. A March 2018 rating decision reopened the previously denied claims, without identifying the new and material evidence received, but denied service connection as the Veteran failed to show for scheduled VA examinations. This appeal arises from the Veteran's disagreement with the March 2018 rating decision. At the time of the prior final disallowance in March 2017, the evidence before adjudicators included service treatment records (STRs), and private and VA treatment records. STRs show complaints of vomiting, fatigue, ear ringing, testicular lump, and surgery on the right shoulder. Private treatment records show treatment for right shoulder pain but indicate no relation to service. VA treatment records show complaints of right shoulder and neck pain, limited range of motion of the neck, and right shoulder arthritis but indicate no relation to service. Evidentiary submissions received since the March 2017 decision includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claims. Private treatment records submitted in March 2018 show treatment for neck and shoulder disabilities. While those records are new as they were not previously considered by adjudicators, those records are not material as they indicate no relation to the Veteran's active servicethe unestablished fact necessary to substantiate the claims. Notably neck and shoulder disabilities were considered in the prior rating decisions but were not shown by the evidence to be related to the Veteran's active service. Therefore, new and material evidence has not been submitted. Accordingly, the petition to reopen is denied. See 38 C.F.R. § 3.156(a). The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Further, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD. The Veteran contends that he has PTSD and depressive disorder as a result of his service. See Statement in Support of Claim (February 2011). To ensure that VA has met its duty to assist, the claim must be remanded for further development. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical evidence of record is inadequate to decide the appeal. A report of VA examination in October 2010 shows that the examiner diagnosed depressive and personality disorders but opined that the Veteran did not meet the diagnostic criteria for PTSD. The Veteran reported that he is "always watching other peoples [sic] hands and do not like people behind me." See Statement in Support of Claim (October 2009). Additionally, non-VA treatment records show that an attending psychologist recommended that the Veteran avoid reading any combat related material. See Medical Treatment Record - Non-Government Facility (November 2009). However, the examiner provided no reasoned medical explanation as to why the Veteran's report and the recommendation to avoid combat related material do not indicate a persistent avoidance of stimuli associated with the traumatic event to support a diagnosis of PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). Further, the examiner noted that the Veteran received VA treatment for PTSD between 2006 and 2007. However, the examiner provided no indication that non-VA medical treatment records submitted in November 2009 which show an assessment of PTSD by a sex offender program psychologist were considered. An adequate opinion must be based on an accurate factual premise and consideration of a veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. 303. The matter is REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142 to complete for the Federal Bureau of Prisons Psychology Data System in Tucson, Arizona. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Thereafter, arrange for the Veteran to be examined by a VA psychologist where he is currently confined, or if not feasible then obtain an addendum opinion based on the evidence of record, to determine the nature and etiology of any acquired psychiatric disorder diagnosed. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and an acquired psychiatric disorder - The examiner must opine whether the acquired psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's conceded in-service stressors. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After the foregoing has been completed, readjudicate the claim on appeal. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. Idongesit T. Umo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, Associate 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.