Citation Nr: 22008041 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-55 888 DATE: February 11, 2022 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for major depressive disorder (MDD) is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for tinnitus is granted. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for an acquired psychiatric disability to include MDD is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left shoulder disability, claimed as secondary to service-connected right shoulder disability, is remanded. FINDINGS OF FACT 1. In a May 2013 rating decision, the RO denied the Veteran's claim of entitlement to service connection for tinnitus. He did not appeal the decision nor was new and material evidence received within one year. 2. The evidence received since the May 2013 rating decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for tinnitus and, if presumed credible, raises a reasonable possibility of substantiating that claim. 3. In a November 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for MDD. He did not perfect a timely appeal of the decision nor was new and material evidence received within one year. 4. The evidence received since the November 2014 rating decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for MDD and, if presumed credible, raises a reasonable possibility of substantiating that claim. 5. In a December 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. He did not appeal the decision nor was new and material evidence received within one year. 6. Additional evidence received since the December 2012 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for bilateral hearing loss. 7. The evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disability, currently diagnosed as MDD, is causally related to his active service. 8. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed tinnitus was incurred in his active military service. 9. A left ankle disability was not incurred in or aggravated by the Veteran's active military service. CONCLUSIONS OF LAW 1. The May 2013 rating decision denying the claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for tinnitus. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. The November 2014 rating decision denying the claim of entitlement to service connection for MDD is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to warrant reopening of the claim of service connection for MDD. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 5. The December 2012 rating decision denying the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence has not been received to warrant reopening of the claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 7. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for an acquired psychiatric disability, currently diagnosed as MDD, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to December 2004, September 2006 to August 2007, and August 2009 to July 2010 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied claims of entitlement to service connection for left ankle disability, headaches, and left shoulder disability. The rating decision also reopened and denied claims of entitlement to service connection for MDD, bilateral hearing loss, and tinnitus. The Veteran filed a notice of disagreement (NOD) in June 2017 and a statement of the case (SOC) was issued in October 2017. He perfected a timely appeal in October 2017. In September 2021, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. Although the RO reopened the Veteran's tinnitus, bilateral hearing loss, and MDD claims, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the appellant that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claims. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for MDD. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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 submitted 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, to include by triggering the Secretary's duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In a May 2013 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for tinnitus. As new and material evidence was not received within one year of the decision, it became final as to the identified claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In a November 2014 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for MDD. He filed a notice of disagreement (NOD) in November 2015 and a statement of the case (SOC) was issued in April 2016. However, the Veteran did not perfect a timely appeal, and new and material evidence was not received within one year of the issuance of the November 2014 rating decision. As such, the November 2014 rating decision became final as to the identified claim. The Veteran filed a claim of entitlement to reopen the matters of service connection for tinnitus and MDD in September 2016. A December 2016 rating decision reopened and denied the Veteran's claims. The Veteran filed a NOD in June 2017 and this appeal follows. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decisions in December 2012 (tinnitus) and November 2014 (MDD). After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claims of service connection for tinnitus and MDD. Relevant evidence received since the December 2012 and November 2014 decisions includes a May 2017 positive nexus opinion from Dr. H.N., as well as lay statements and personal testimony of the Veteran. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran's claims of entitlement to service connection for MDD and tinnitus. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, in the May 2017 nexus opinion, Dr. H.N. opined that the Veteran's diagnosed depression is causally linked to his military service. Additionally, the Veteran offered personal testimony concerning his depression and tinnitus symptoms dating from his periods of active duty service. This evidence relates to previously unestablished elements of nexus and continuity as to the claims of entitlement to service connection for tinnitus and MDD. Accordingly, when presumed credible, the evidence meets the standards for reopening under 3.156(a). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. A December 2012 rating decision denied the Veteran's original claim of entitlement to service connection for bilateral hearing loss. The Veteran did not disagree with the denial within the applicable time period. As new and material evidence was not received within one year of the decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, 659 F.3d at 1367-68. Under these circumstances, the RO's December 2012 decision is final, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In September 2016, the Veteran filed to reopen the claim of entitlement to service connection for bilateral hearing loss. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in December 2012. After reviewing the record, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for bilateral hearing loss. The evidence associated with the VA claims file at the time of the last final denial in December 2012 included STRs, a VA examination report dated in April 2011, and the statements of the Veteran. At the time of the last final denial, the Veteran contended that he suffered from bilateral hearing loss as a result of in-service noise exposure in his military occupational specialty (MOS) as cannon crewmember during his periods of active duty service. See the Veteran's claim dated August 2010 and the VA examination report dated April 2011. A May 2001 periodic examination documented the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 10 15 10 10 11.25 LEFT 5 5 5 15 7.5 A September 2006 examination documented the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 5 10 8.75 LEFT 10 5 15 15 11.25 A July 2007 reference audiogram documented the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 10 15 13.75 LEFT 10 15 15 20 15 A September 2007 audiology note documented the Veteran's report of noise exposure as an artillery man during his Army National Guard service. The Veteran's speech discrimination score was 92 percent in the right ear and 96 percent in the left ear. The treatment provider, however, did not indicate that speech discrimination testing was performed pursuant to the Maryland CNC Test as required by 38 C.F.R. § 3.385. An April 2011 VA audiology examination conceded the Veteran's in-service noise exposure in the performance of his MOS of cannon crewmember. The examiner noted that the Veteran's "STRs show a decrease in hearing on his separation exam in comparing to his enlistment exam." The examiner documented the following audiometric thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 20 25 21.25 LEFT 15 15 20 25 18.75 The examiner also documented puretone audiometric thresholds of 94 percent in the right ear and 96 percent in the left ear. As described above, the Veteran's hearing thresholds as documented by the multiple service audiograms and the April 2011 VA audiology examiner are below those recognized by VA as denoting hearing impairment. See 38 C.F.R. § 3.385. Consistently, the probative evidence established that the Veteran's speech recognition scores were above those recognized by VA as denoting a hearing loss disability pursuant to 38 C.F.R. § 3.385. In the December 2012 rating decision, the RO denied the Veteran's claim because the evidence of record including in-service and post-service audiometric testing showed that the Veteran did not meet the criteria for a current hearing loss disability in either ear for VA purposes pursuant to 38 C.F.R. § 3.385. As outlined above, the Veteran filed a claim to reopen in September 2016. The claim to reopen was denied in December 2016. This appeal follows. After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for bilateral hearing loss has not been received. The evidence associated with the claims file subsequent to the prior final decision in December 2012, includes the Veteran's VA treatment records, as well as statements and personal testimony of the Veteran. The VA treatment records added to the record do not contain documentation of audiometric testing showing hearing loss sufficient for VA compensation purposes pursuant to 38 C.F.R. § 3.385 at any time from the December 2012 rating decision. At the September 2021 Board hearing, the Veteran testified that he developed bilateral hearing loss as a result of his active duty service. Notably, the Veteran's assertions concerning the incurrence and etiology concerning his claimed bilateral hearing loss are cumulative of evidence already of record and considered by the RO at the time of the last rating decision. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id.; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, the Veteran did not provide evidence in support of diagnosis sufficient for VA compensation purposes or a nexus between his claimed bilateral hearing loss and his military service, which was not previously considered in prior decision. Accordingly, his contentions made in support of his claim to reopen may not be deemed to be both new and material. Shade, supra. As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156. The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for bilateral hearing loss is not reopened. 4. Entitlement to service connection for an acquired psychiatric disability, to include MDD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this matter, the Veteran contends that he suffers from an acquired psychiatric disability, which was incurred during his active military service. For the reasons set forth below, the Board finds that service connection is warranted based upon the evidence of record. As indicated above, the Veteran served on active duty from January 2003 to December 2004, September 2006 to August 2007, and August 2009 to July 2010. He described developing psychological symptoms as a result of financial stress during his active duty service. See the September 2021 Board hearing transcript, pg. 3. VA treatment records dated in December 2007 noted the Veteran's report of frustration related to lack of promotion since at least 1999, more pronounced since returning from a mission in August 2007. The Veteran described symptoms of stress and mild depression. He was diagnosed with adjustment disorder with mixed anxiety and depressed mood. VA treatment records dated in March 2008 documented the Veteran's report that he had been depressed and angry with what he considered unfair treatment by the National Guard. VA treatment records dated in November 2011 documented this report of depression, stress, and anger. Diagnoses of depressive disorder, not otherwise specified (NOS), and anxiety disorder, and substance induced mood disorder were noted in October 2013 and December 2013. A March 2015 VA medical center (VAMC) problem list documented diagnoses of anger/stress disorder, depressive disorder, NOS, anxiety disorder, NOS, and substance induced mood disorder. The Veteran was afforded a VA psychological examination dated in November 2014, at which time the examiner confirmed a diagnosis of MDD. The examiner indicated that the Veteran does not meet the criteria for PTSD. In a separate April 2016 medical opinion, the VA examiner indicated that the diagnosed depressive disorder, NOS, anxiety disorder, and substance induced mood disorder "are not related to a condition incurred during military service." In a June 2017 NOD, Veteran reported that his depression symptoms began during his active duty service. In support of his contentions, the Veteran submitted a May 2017 medical opinion from his VA treatment provider, Dr. H.N. In the May 2017 medical opinion, Dr. H.N. indicated that the Veteran's depression more likely than not began during his military service. VA treatment records dated in January 2017 documented the Veteran's report that his psychological symptoms began during his deployment and military career. At the September 2021 Board hearing, the Veteran described symptoms of depression, which began during his deployment to Kosovo, and have continued to the present day. See the Board hearing transcript, pg. 3. After reviewing the record, the Board finds that service connection for an acquired psychiatric disability to include MDD is warranted. The Board has weighed the probative evidence of record and finds that there is an approximately balance of positive and negative evidence as to whether the Veteran's acquired psychiatric disability, currently diagnosed as MDD, was incurred in his military service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection. See 38 U.S.C. § 5107. 5. Entitlement to service connection for tinnitus. Here, the Veteran contends that he has tinnitus, which is due to in-service noise exposure. See, e.g., the September 2021 Board hearing transcript. For the reasons set forth below, the Board finds that service connection for tinnitus is warranted. With respect to a current diagnosis, the April 2011 VA examiner confirmed a diagnosis of tinnitus. With respect to an in-service disease or injury, as indicated above, the record demonstrates that the Veteran served on active duty from January 2003 to December 2004, September 2006 to August 2007, and August 2009 to July 2010. He asserts that he sustained noise exposure while performing his military occupational specialties of cannon crewmember and motor transport operator. See the September 2021 Board hearing transcript. The Veteran's service personnel records corroborate these military occupational specialties, as well as July 2007 notation of "[s]teady noise exposure." The RO has conceded the Veteran's in-service noise exposure. See, e.g., the SOC dated October 2017. Moreover, as set forth below, the Board finds competent and credible evidence of an in-service disease, tinnitus, based on the Veteran's hearing testimony. With respect to the final element of nexus, the Veteran was afforded a VA examination in April 2011 at which time the examiner noted the Veteran's report of tinnitus. The examiner indicated that the diagnosed tinnitus is not at least as likely as not caused by or a result of an event in military service. The examiner reviewed pertinent medical literature and opined, "the tinnitus being related to noise exposure does decrease the greater the time of onset is removed from the time of the noise exposure." The examiner concluded, "[i]t is at least as likely as not that the etiology of tinnitus is secondary to Veteran's current hearing loss at 8000 Hz in his right ear, however, based upon current study and medical records in the provided C-file, the etiology of tinnitus due to noise exposure during military service cannot be established." At the September 2021 Board hearing, the Veteran presented detailed testimony describing the onset of tinnitus during his active duty service after in-service noise exposure. See, e.g., the Board hearing transcript. He asserted that this tinnitus continued to the present day. Id. To this end, the Board finds the Veteran's contentions to be both competent and credible. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's statements and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such lay evidence is sufficient to establish service connection. Id As previously discussed above, the Veteran's assertions as to his tinnitus symptoms in service and thereafter are competent and credible as to in-service incurrence and continuity of symptomatology. Despite the negative nexus opinion from the VA examiner, as set forth above, the law provides an alternate avenue for establishing a nexus for certain chronic diseases, including an organic disease of the nervous system such as tinnitus. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). The Veteran has competently and credibly reported that his tinnitus, which had its onset during active duty, had continued since that time. The law provides that when a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). Absent evidence of an intercurrent cause, the Board finds that the competent and credible evidence establishes that the Veteran's tinnitus had its inception during active service and has existed since that time. The Board has weighed the probative evidence of record, including the April 2011 VA medical opinion as well as the Veteran's competent and credible assertions concerning continuing tinnitus symptomatology, and finds that the evidence is in approximate balance. As reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for a left ankle disability. In this matter, the Veteran seeks service connection for a left ankle disability, which he contends was incurred during his active duty service. After carefully considering the record on appeal, the Board finds that service connection is not warranted. As indicated above, the Veteran served on active duty from January 2003 to December 2004, September 2006 to August 2007, and August 2009 to July 2010. He has asserted that he twisted his left ankle multiple times during service and also developed a left ankle disability as a result of wear military boots. See, e.g., the September 2021 Board hearing transcript. To this end, the Veteran's service treatment records (STRs) do not document any complaints of or treatment for a left ankle disability. No left ankle diagnosis was documented at any time during the Veteran's active duty service. To the contrary, the service treatment records reflect that his lower extremities were examined on multiple occasions during service and were consistently found to be normal. Post-service treatment records show diagnoses of multiple disabilities, but do not include a diagnosis of a left ankle disability. The Board notes, however, that the Veteran is competent to describe injuries and report observable symptoms such as left ankle pain. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). Nevertheless, after reviewing the record, the Board finds that the record contains no indication that the currently claimed left ankle disability may be associated with the Veteran's service, including the reported injuries. As set forth above, the service treatment records establish that a left ankle disability did not have its inception during active service, as evidenced by the normal findings on examination of the lower extremities. Additionally, the Veteran has not reported continuous symptoms since service or claimed that he had symptoms of a presumptive disease within one year of discharge from active duty. Finally, no medical professional has suggested that the Veteran currently suffers from a left ankle disability that was incurred in or aggravated by his active duty service, and the Veteran has not presented, identified, or even alluded to the existence of any such medical evidence or opinion. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). The Veteran's general contention that his current disability is the result of in-service injuries is a conclusory generalized statement which is insufficient to trigger VA's duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (holding that a veteran's mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide a VA examination). The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in relative equipoise. Considering the record, including STRs, post-service medical evidence, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the Board finds that the evidence is not in approximate balance and is persuasively against the Veteran's claim; thus, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is remanded. The Veteran asserts entitlement to service connection for headaches, which he has asserted were incurred during his active duty service. See, e.g., the Board hearing transcript dated September 2021. He has alternatively contended that he developed headaches as a result of service-connected lipoma excision. See the NOD dated June 2017. He has more recently claimed that his headaches are stress-related and therefore causally related to his now service-connected psychiatric disability. See the September 2021 Board hearing transcript, pg. 10. The Veteran was previously afforded a VA examination in August 2017, at which time the examiner opined that the Veteran's headaches are less likely as not proximately due to or the result of the lipoma, status-post excision with scar. Critically, the August 2017 VA examiner provided little rationale to support the conclusion rendered and also did not address the question of whether the Veteran's headaches are aggravated by the lipoma, status-post excision with scar. Accordingly, the Board finds that the evidence of record is insufficient to resolve the claim of entitlement to service connection for headaches. This claim must therefore be remanded in order to obtain a new VA medical opinion to address outstanding questions of nexus and aggravation. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). 2. Entitlement to service connection for a left shoulder disability, claimed as secondary to service-connected right shoulder disability, is remanded. The Veteran asserts entitlement to service connection for a left shoulder disability, which he contends is causally related to his service-connected right shoulder disability. The record demonstrates that the Veteran is service connected for right shoulder impingement syndrome, biceps tendonitis. See the rating decision dated December 2012. The Veteran was afforded a VA examination in November 2016 at which time the examiner diagnosed him with rotator cuff tendonitis and shoulder strain of the left shoulder. The examiner indicated that the diagnosed left shoulder disabilities were less likely than not proximately due to or the result of the Veteran's service-connected right shoulder disability. The examiner explained, "[t]here are no medical records to show that the patient had either a left or right shoulder condition while in the service, therefore, it is less likely than not that there is a right shoulder condition due to a left shoulder condition." Critically, the rationale provided by the November 2016 VA examiner is nonsensical, does not support the conclusion rendered, and does not address the question of aggravation. The Board therefore finds that the evidence of record is insufficient to resolve the claim of entitlement to service connection for a left shoulder disability. This claim must therefore be remanded in order to obtain a new VA medical opinion to address outstanding questions of nexus and aggravation. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: 1. Refer the VA claims file to a medical professional to provide an opinion as to the claimed headaches. The examiner is requested to review the relevant evidence of record. The examiner should then address the following: (a). Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's headaches had their onset during his active duty service or are causally related to such service? (b). Is it at least as likely as not that the diagnosed headaches were caused by the service-connected lipoma, status-post excision with scar and/or the service-connected psychiatric disability to include MDD? (c). If not, is it at least as likely as not that the Veteran's headaches is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by service-connected lipoma, status-post excision with scar and/or the service-connected psychiatric disability to include MDD? If the Veteran's headaches are aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. 2. Refer the VA claims file to a medical professional to provide an opinion as to the claimed left shoulder disability. The examiner is requested to review the relevant evidence of record. The examiner should then address the following: (a). Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's left shoulder disability had its onset during his active duty service or is causally related to such service? (b). Is it at least as likely as not that the diagnosed left shoulder disability was caused by the service-connected right shoulder disability? (c). If not, is it at least as likely as not that the Veteran's left shoulder is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by service-connected right shoulder disability? (Continued on the next page) If the Veteran's left shoulder is aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.