Citation Nr: A25041207 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240605-450408 DATE: May 6, 2025 ORDER The appeal for service connection for a back disorder is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) with bipolar depression and insomnia is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The June 2024 VA Form 10182 Notice of Disagreement is an untimely appeal of the January 2023 rating decision, and there are no rating decisions within one year of the Notice of Disagreement that denied the claim for service connection for a back disorder. 2. The evidence does not show a current psychiatric disability. 3. The evidence does not show current left or right knee disabilities. 4. The Veteran's headaches disorder clearly and unmistakably preexisted service and was not aggravated beyond its natural progression in service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for service connection for a back disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.202, 20.1103. 2. The criteria for service connection for PTSD with bipolar depression and insomnia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserves from 2016 to 2022, to include a period of active duty training service from September 12, 2016 to January 27, 2017. Because he was awarded service connection for tinnitus stemming from that period of service, he now has veteran status for the period of service from September 12, 2016 to January 27, 2017. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision on appeal for his headaches claim, the March 2024 AOJ decision for his knee claims, and the April 2024 rating decision for his psychiatric claim. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to service connection for a back disorder is dismissed. The Veteran seeks service connection for a back disorder. The Board finds that the appeal must be dismissed because it is not properly before the Board. The Veteran filed an initial claim for service connection for a back disorder in September 2022, which the AOJ denied in January 2023. He did not appeal the decision, and the decision is therefore final. See 38 C.F.R. § 20.1103. In June 2023 and October 2023, the Veteran filed requests to readjudicate his previously denied claim for service connection for a back disorder on VA Forms 21-526EZ. The AOJ notified the Veteran in June 2023 and November 2023 that VA regulations require he file the request to review a previously denied claim on the proper form, which he did not do. The notices instructed the Veteran to submit VA Form 20-0995, Decision Review Request: Supplemental Claim, for claims that were previously denied. The notices were mailed to his correct address and were not returned. The Veteran filed VA Form 10182 in June 2024 and indicated that he was appealing the January 2023 decision regarding his claim for service connection for a back disorder. The Board finds that dismissal is necessary in this case because the June 2024 VA Form 10182 was filed more than one year after the January 2023 rating decision and is untimely. Although the Board may not dismiss the appeal for lack of jurisdiction due to an untimely VA Form 21-0958, Notice of Disagreement, it may dismiss the appeal due to non-jurisdictional reasons, such as a procedural defect, where the claimant did not substantially comply with proper claims processing rules. See Ferko v. McDonough, 37 Vet. App. 262 (2024). The "one-year deadline...is an 'important and mandatory' component of section 7105(b)'s claim-processing rule." See id. (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). Here, the Veteran missed the filing deadline and has not shown good cause. Moreover, VA has not implicitly or explicitly waived the timeliness issue. See Ferko, 37 Vet App. at 270; see also Martin v. O-Rourke, 891 F.3d 1338, 1346 (Fed. Cir. 2018) (holding that docketing an appeal is a ministerial act and has no implications as to whether the Board accepted an appeal for merits review). Accordingly, the Board finds the June 2024 VA Form 10182 is an untimely appeal of the January 2023 rating decision, and the appeal is dismissed. 2. Entitlement to service connection for PTSD with bipolar depression and insomnia is denied. The Veteran seeks service connection for PTSD with bipolar depression and insomnia. Establishing service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 397 (2020). Service connection for a psychiatric disability requires a formal DSM-5 diagnosis. See id. at 401. Turning to the evidence, VA scheduled the Veteran for a mental disorders examination in January 2024. The Veteran failed to appear and did not provide good cause for missing the examination. He stated on his VA Form 10182 that he was not evaluated for insomnia, however, this does not constitute good cause nor suggest that he did not receive notice for the examination. The exam request documented the correct address and the rating decision, also mailed to the correct address, noted that the Veteran failed to appear for the examination. Pursuant to 38 C.F.R. § 3.655, when a Veteran fails, without good cause, to report for a necessary examination scheduled in conjunction with an original compensation claim, the claim must be decided based on the evidence of record. Here, there is no competent evidence of a diagnosed psychiatric disability. There are no medical records that show treatment or diagnosis of a psychiatric disorder. VA requested more details related to his PTSD claim in November 2023 and March 2024, to which the Veteran did not respond. Although the Veteran contends that he has these disabilities, as a layperson, he is not competent to render a diagnosis that conforms with the DSM-5. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding his insomnia claim, while he is competent to attest to sleep impairment, he is not competent to diagnose himself with a sleep disorder. See Martinez-Bodon, 32 Vet. App. at 401. Critically, he has not alleged that a medical professional has diagnosed him with these conditions and the records are outstanding. Because there is no competent evidence of a current psychiatric disability, the Board finds that service connection is not warranted, and the claim is denied. 3. Entitlement to service connection for a left knee disorder is denied. 4. Entitlement to service connection for a right knee disorder is denied. The Veteran seeks service connection for left and right knee disorders due to his duties in service. The Board finds, however, that there is no evidence of a current knee disability. There are no post-service medical records which document current knee symptoms, treatment, or diagnoses. Although the Veteran wrote that he has bilateral knee pain on his claim form, the available lay and medical evidence is negative for diagnoses or symptoms that cause functional impairment which limits his earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). After considering the evidence, the Board finds that service connection is not warranted for left or right knee disorders because there is no evidence of current disabilities. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the claims for service connection for left knee and right knee disabilities are denied. Because the evidence does not show complaints in service or current disabilities, VA's duty to obtain an examination was not triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for headaches is denied. The Veteran seeks service connection for headaches. He alleged on his initial claim form that his condition was secondary to his back, and he alleged during the June 2023 VA examination that they onset in 2020. Because the Veteran is not service-connected for a back disorder, the Board will consider only whether they began during or are related to service. He also alleged they are secondary to his service-connected tinnitus. There is no competent evidence to support such a relationship. The medical evidence does not show that his tinnitus caused or aggravates his headaches and, as a layperson, the Veteran is not competent to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because the Veteran alleged this after the rating decision on appeal, the AOJ did not commit a pre-decisional error in failing to obtain a medical opinion that addressed this contention. Because the Veteran has obtained veteran status for this period of service, the presumption of soundness applies. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). A veteran is presumed to have been sound upon entry into service when no preexisting condition is noted at entry. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. See Wagner, 370 F.3d at 1096. If this burden is met, then the veteran is not entitled to service-connected benefits. See id. Here, the Veteran's entrance examination does not document headaches. The Board finds that the evidence clearly and unmistakably shows that he entered service with a preexisting headache disorder that was not aggravated in service, however. His pre-service records show that he was initially treated for headaches when he was 7 years old. At that time, he complained of headaches two times per week. He was diagnosed with a headaches syndrome. His subsequent records show complaints of chronic headaches in February 2009, January 2011, and August 2015. In January 2011, he complained of migraines that onset three years before. In August 2015, he sought treatment for new headaches that onset 6 weeks ago that worsened with exercise. The provider noted a medical history of migraines, usually frontal, with photophobia. The provider theorized his complaints were related to atypical migraines, but the Veteran stated these headaches presented differently from his migraines, and he was diagnosed with primary exertional headaches. The Board finds that this evidence clearly and unmistakably shows migraine headache and primary exertional headache disorders preexisted service. The records are negative for any headache treatment in or after service until the VA examination. On October 1, 2016, he sought treatment for left shoulder pain and denied headaches. Subsequent records are negative for treatment for headaches. In the June 2023 VA examination, he was diagnosed with migraine headaches. The Veteran complained of migraine pain behind his eyes and mild photophobia. He also contended that his migraines onset in 2020, which is after his period of active duty service. After weighing the evidence, the Board finds that the Veteran's headache disorder condition clearly and unmistakably preexisted service and was not aggravated beyond the natural progression by service. The Veteran's pre-service records show treatment for headaches and migraines that onset approximately 10 years prior to service and were chronic since then. Further, his service records are negative for headache and migraine complaints, and there are no post-service records to support his claim. Importantly, the Veteran did not allege that his headaches worsened during the period of active-duty service; instead, he reported that they onset in 2020, well after active-duty service. Although he was in the Reserve in 2020, service connection could only be granted for headaches if they were linked to an injury he received while on inactive duty. Not only has he alleged no such injury, but, again, the medical records clearly and unmistakably demonstrate he had a chronic headache disorder prior to his enlistment in the Reserve. Without any medical records showing treatment while he was on active duty and no lay evidence asserting any worsening while he was on active duty, there is simply no evidence his headaches worsened during his active service. The Board thus finds that the evidence clearly and unmistakably shows they were not aggravated beyond the natural progression in service. Accordingly, the weight of the evidence is against service connection for headaches, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.