Citation Nr: 21042353 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-15 796 DATE: July 12, 2021 ORDER Reopening of entitlement to service connection for a cervical spine (neck) disorder is denied. Reopening of entitlement to service connection for a thoracolumbar spine (low back) disorder is denied. Entitlement to service connection for a right shoulder disorder is granted. Entitlement to service connection for a disorder of joints other than the neck, low back, or right shoulder, is denied. Entitlement to service connection for a blockage of the brain is denied. REMANDED Entitlement to service connection for an acquired mental disorder is remanded. FINDINGS OF FACT 1. In an October 2010 decision, the Board denied an application to reopen a claim of entitlement to service connection for a neck disorder; at the time of that decision, the evidence did not substantiate a nexus between a current neck disorder and service, or to a service-connected disability. 2. The evidence associated with the claims file subsequent to the October 2010 Board decision does not contain relevant service department records which existed but were not of record at the time of that decision; does not relate to any unestablished fact necessary to substantiate service connection for a neck disorder; is cumulative and/or redundant of evidence already of record; and does not raise a reasonable possibility of substantiating service connection for a neck disorder. 3. In an unappealed October 2010 Board decision, VA denied a claim of entitlement to service connection for a low back disorder; at the time of that decision, the evidence did not substantiate a nexus between a current disability and service or a service-connected disability. 4. The evidence associated with the claims file subsequent to the October 2010 Board decision does not contain relevant service department records which existed but were not of record at the time of that decision; does not relate to any unestablished fact necessary to substantiate service connection for a low back disorder; is cumulative and/or redundant of evidence already of record; and does not raise a reasonable possibility of substantiating service connection for a low back disorder. 5. A right shoulder disorder is related to a service-connected disability. 6. A disorder of joints other than the neck, low back, or right shoulder, is not related to service or to a service-connected disability. 7. A blockage of the brain is not related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The October 2010 Board decision is final with respect to entitlement to service connection for a neck disorder. 38 U.S.C. § 7105. 2. The criteria for reopening the claim of entitlement to service connection for a neck disorder are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3. The October 2010 decision is final with respect to entitlement to service connection for a low back disorder. 38 U.S.C. § 7105. 4. The criteria for reopening the claim of entitlement to service connection for a low back disorder are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 5. The criteria for entitlement to service connection for a right shoulder disorder are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310. 6. The criteria for entitlement to service connection for a disorder of joints other than the neck, low back, or right shoulder, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 7. The criteria for entitlement to service connection for a blockage of the brain are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from October 1960 to December 1963. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not report for a Board hearing that was scheduled to be conducted at the RO in April 2021. Because the Veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (failure to appear for a scheduled hearing treated as withdrawal of request). The Veteran's representative has submitted written argument in support of a claim of entitlement to a disability rating higher than 0 percent for the service-connected sinusitis. However, a letter from VA dated November 19, 2019, notified the Veteran that the VA Form 9 received on September 26, 2019, was untimely with respect to the rating decision mailed on June 11, 2018, and with respect to the Statement of the Case mailed on July 19, 2019. An appeal of this determination has not been received. The November 19, 2019, notice letter was returned as undeliverable. A December 6, 2019, notice letter informed the Veteran that VA had received the undelivered mail. This letter was also returned. Another letter was sent on January 22, 2020. This letter was not returned, and there has been no change of address received. The Veteran was found not competent to handle disbursement of funds in March 2021, and a custodian was named in May 2021. Nevertheless, there is no active appeal of the rating for sinusitis. The Board has recharacterized the claim adjudicated by the agency of original jurisdiction as "chronic arthritis whole body." The reason for this recharacterization is that the Veteran, as a layperson, is not competent to determine the medical cause for his symptoms. Clemons v. Shinseki, 23 Vet. App. 1 (Vet. App. Feb 17, 2009). He has complained of joint pain in multiple joints. The agency of original jurisdiction has chosen to adjudicate this as a single claim rather than asking the Veteran to specify which joints are painful. Accordingly, the Board interprets the claim as applying to any joint. The Board also interprets the claim as not specific to arthritis, but applying to any joint pathology. In addition, as the Board has previously adjudicated and denied a claim for service connection for a neck disorder, the Board has addressed that as a separate claim to reopen. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. In an October 2010 decision, the Board denied an application to reopen a claim of entitlement to service connection for a neck disorder, and denied a claim of entitlement to service connection for a low back disorder. At the time of the October 2010 decision, the evidence did not substantiate a nexus between a current neck or low back disorder and service or to a service-connected disability. The October 2010 Board decision is the last disallowance of these claims on any basis. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998) (the Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened). VA may reopen any denied and final claim if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For claims to reopen decided prior to February 19, 2019, new evidence is defined as evidence not previously submitted to agency decision makers and material evidence is 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 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(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). This affects the finality of the prior denial. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). This also affects the finality of the prior denial. To reopen a denied and final claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. For instance, where a prior denial was based on both (1) the lack of current disability, and (2) the lack of an established nexus, newly submitted evidence of a current disability is, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence received since the October 2010 Board decision includes VA outpatient treatment records and written statements by the Veteran and his representative, as well as statements related by medical treatment providers. The medical evidence essentially reaffirms that the Veteran has complaints referrable to his neck and low back, and has currently diagnosed disorders of the neck and low back. The statements made by the Veteran reiterate his assertion that his neck and low back complaints are due to injuries in service or are due to his service-connected right hand disability. This evidence is cumulative and redundant of evidence previously considered. It does discuss or suggest a nexus between the neck and low back disorders, which were in existence at the time of the October 2010 decision, and service or a service-connected disability. Accordingly, it is not new and material, and reopening of the claims is not warranted. Entitlement to service connection for a right shoulder disorder. Entitlement to service connection for a disorder of joints other than the neck, low back, or right shoulder. Entitlement to service connection for a blockage of the brain. Service treatment records reveal no complaint of, treatment for, or diagnosis of arthritis or other joint disease, or brain blockage. A report of medical examination performed on December 5, 1963 (service separation, reveals normal findings for the head, lower extremities, upper extremities, and spine. Physical profile ratings were all "1." This indicates that the Veteran possessed a high level of medical fitness with respect to physical capacity or stamina, including conditions of the heart; respiratory system; gastrointestinal system, genitourinary system; nervous system; allergic, endocrine, metabolic and nutritional diseases; diseases of the blood and blood forming tissues; dental conditions; diseases of the breast, and other organic defects and diseases; the upper extremities, including the hands, arms, shoulder girdle, and upper spine (cervical, thoracic, and upper lumbar) in regard to strength, range of motion, and general efficiency; and the lower extremities, including the feet, legs, pelvic girdle, lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency (Record 05/19/1966 at 17). A report of medical history completed by the Veteran on October 24, 1963, reveals his statement that he had no history of, or current, arthritis or rheumatism (Record 05/19/1966 at 14). The Veteran was discharged on December 5, 1963. He filed his initial application for benefits in January 1983. A VA examination in June 1983 reveals a normal examination of the head. Musculoskeletal disorders were limited to the right hand (Record 06/07/1983). A VA examination of the thumb in November 2005 notes complaint of shoulder pain. The Veteran stated there was no acute injury to his shoulder in the military. However, he attributed the shoulder pain to his right hand injury, starting 4 years after the crush injury to the right hand. The examiner diagnosed right rotator cuff tendonitis. The examiner opined that the rotator cuff tendonitis was at least as likely as not related to the hand disability, as the Veteran would likely have to change carrying angles and position of his shoulder to provide for everyday activities if his pain in his thumb was as stated (Record 11/12/2005). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a right shoulder disorder are met. However, the criteria for entitlement to service connection for other joint disorders and the claimed brain disorder are not met. The November 2005 medical opinion links a right shoulder disorder to a service-connected disability. While the Veteran has also been found to have arthritis of the left shoulder, the service separation examination noted normal findings for the upper extremities. Thus, arthritis of the left shoulder was not present in service. There is also no manifestation of arthritis of the left shoulder to a degree of 10 percent or more within one year of service separation. There are no presumptions available for blockage of the brain. The Veteran has never explained what he means by a blockage of the brain. This description does not correspond to any known disorder. He has not pointed to any medical treatment or diagnosis associated with this claim. He has not described the nature of the blockage. His outpatient treatment records are fairly voluminous and date back to 2002. There is no reference to a blockage of the brain in these records. He is already service-connected for sinusitis. This was confirmed by MRI of the brain in April 2017. There was no reference to a blockage of the brain other than the already service-connected sinusitis, which is an inflammation of the sinuses. The Veteran's representative has suggested that he intends this to refer to a traumatic brain injury. However, this is entirely speculative, as no traumatic brain injury has been diagnosed. Indeed, the May 2018 mental health examiner found that a review of the evidence did not indicate a traumatic brain injury diagnosis. Therefore, the Board finds that the evidence does not substantiate a blockage of the brain, nor is there sufficient evidence to order additional development of this claim. Regarding the joints other than the neck and low back, the Veteran has complained of pain in the hips, ankles, hands, and left shoulder. In September 2002, he complained of chest pain, which he also sensed in the left shoulder and arm. In July 2004 he was seen in the emergency department for pain in the shoulders. However, this was attributed to a fall from a ladder about a month before. While the Veteran has been treated for diffuse joint pain, there is no medical opinion attributing these complaints to service or to a service-connected disability. There is also not suggestion of such a nexus in the medical record. Accordingly, the Board finds that no additional development is necessary, and that service connection for additional joint pathology is not warranted. The Board has considered the Veteran's lay statements regarding etiology. However, providing a diagnosis of a brain disorder, and relating current joint disorders to temporally remote events in service are not equivalent to relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issues are medically complex and require medical judgement. Therefore, they are outside the competence of a layperson. Accordingly, the Veteran's lay statements are unpersuasive as to diagnosis and etiology regarding these claims. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that a right shoulder disorder is proximately due to the service-connected right hand disability. However no other joint disorders are related to service or a service-connected disability. Moreover, the claimed blocked brain is not related to service or a service-connected disability. In light of these findings of fact, the Board concludes that service connection for a right shoulder disorder is warranted. As this represents the full benefit sought on appeal, there is no prejudice resulting from any deficiency in the duties to notify or assist. The Board also concludes that service connection for the claimed blocked brain and whole body arthritis is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for an acquired mental disorder. The Veteran is seeking service connection for PTSD. The VA examination obtained in May 2018 finds that he does not meet the criteria for a diagnosis of PTSD, but that he has an adjustment disorder and a delusional disorder, which the examiner opined are not related to service or to a service-connected disability. As a result of this, the agency of original jurisdiction found the Veteran to be incompetent to handle funds and appointed a conservator. However, the March 2021 rating decision that implements the finding and appointment states "You have been diagnosed with Post Traumatic Stress Disorder and memory loss." The Board can find no such diagnosis in the medical record. PTSD screens have repeatedly been negative. The letter proposing a finding of incompetency describes the evidence simply as "C&P Exam DBQ PSYCH PTSD Initial." The date is not provided. The determination as to whether the Veteran has PTSD is central to his claim. If he has been diagnosed with PTSD, this evidence is not in the record. At a minimum, clarification is necessary as to why the March 2021 rating decision states that he has been diagnosed with PTSD, when apparently, the only examination addressing this question states that he does not. If there is another diagnosis, it is not of record. This matter is REMANDED for the following action: 1. Identify the date of the examination on which the statement that the Veteran has been diagnosed with PTSD is based. If it is the May 2018 VA mental disorders examination, issue a memorandum for the claims file clarifying the error in diagnosis listed in the March 2021 rating decision, and return the appeal to the Board. 2. If the statement in the March 2021 rating decision is based on evidence not in the claims file, associate this evidence with the claims file and conduct any additional development necessary to verify the Veteran's PTSD stressors, and readjudicate the claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.