Citation Nr: 1806043 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-32 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disability to include major depressive disorder with anxiety and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability to include major depressive disorder with anxiety and PTSD. 3. Entitlement to service connection for sleep apnea to include as secondary to an acquired psychiatric disability to include PTSD. 4. Entitlement to service connection for an ischemic heart disability. REPRESENTATION Veteran represented by: Andrew Weiner, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011, November 2011, and November 2012 rating decision of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2016, the Veteran presented sworn testimony during a Travel Board hearing in Nashville, Tennessee, which was presided over by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The issues of entitlement to service connection for an acquired psychiatric disability to include major depressive disorder with anxiety and PTSD and entitlement to service connection for sleep apnea to include as secondary to an acquired psychiatric disability to include PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed January 2004 rating decision, the RO denied service connection for an acquired psychiatric disability because there was no evidence of in service incurrence of an acquired psychiatric disability. 2. The evidence added to the record since January 2004 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for an acquired psychiatric disability. 3. The Veteran does not have ischemic heart disease. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied service connection for acquired psychiatric disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. With respect to the Veteran's claim for service connection for an acquired psychiatric disability, new and material evidence has been received since the January 2004 denial. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.158 (2017). 3. The criteria for service connection for ischemic heart disease have not been met. §§ 1110, 1131, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and although VA has not provided a medical examination or obtained a medical opinion with regard to the claim for ischemic heart disability; however, the evidence does not establish that the Veteran has a current disability or recurrent symptoms. As the Veteran has neither identified symptoms nor testified to the issue of ischemic heart disease, the Board finds that there is no medical evidence of persistent or recurrent symptoms and no current disability and thus, an examination is not warranted. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). 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). For the purpose of 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Merits - New and Material Evidence The Veteran was denied service connection for an acquired psychiatric disability to include paranoid schizophrenia in a January 2004 rating decision because there was no evidence that the Veteran's acquired psychiatric disability was incurred in service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Veteran's testified in February 2016 that he had symptoms of mental illness since his separation from service. This testimony is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for an acquired psychiatric disability. Specifically, due to the prior lack of evidence showing a relationship between service and his current disability, this new evidence is material because it relates to an element that was previously not shown, a relationship between service and his current mental illness. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for an acquired psychiatric disability to include Major depressive disorder with anxiety and PTSD is reopened. 38 U.S.C.A. § 5108. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims decided herein. Merits The Veteran applied for service connection for ischemic heart disability. The Board notes that the Veteran has not received a diagnosis of ischemic heart disability. The Veteran has not offered any testimony on symptoms of a heart disability and no evidence of a diagnosis of ischemic heart disability exists in the claims file. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (there can be no valid claim for service connection in the absence of a present disability). In the absence of a current disability, service connection cannot be awarded. Accordingly, the preponderance of the evidence is against the Veteran's claim, and entitlement to service connection for an ischemic heart disability is denied. ORDER The claim for service connection for an acquired psychiatric disability to include major depressive disorder with anxiety and PTSD is reopened, the claim is granted to this extent only. Entitlement to service connection for an ischemic heart disability is denied. REMAND VA Examination - Acquired Psychiatric Disability to Include PTSD The October 2012 VA Examination provided to the Veteran regarding his acquired psychiatric disability is inadequate. The examiner wrote that he could not find corroborating information to support the Veteran's contentions regarding combat service in Vietnam. However, the Veteran has submitted Military Personnel Records that include a reference to Veteran's participation in the TET 1969 Counter Offensive. Thus, the VA examiner's opinion on the matter is inadequate because it is based on the flawed premise that the Veteran did not have combat experience. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that an opinion based upon an inaccurate factual premise has no probative value). Thus, the Board finds that a new VA examination is warranted. VA Examination Sleep Apnea The Veteran has not been provided a VA examination on the issue of whether his sleep apnea is related to his service or his pending service connection claim for an acquired psychiatric disability. The October 2012 VA examination includes a reference to a chronic sleep impairment as a symptom of his acquired psychiatric disability, and the Veteran presented evidence in the form of an article "Study Finds High Risk of Sleep Apnea in Young Veterans with PTSD," published by the American Academy of Sleep Medicine in May 19, 2015. The Board is not competent to address whether the Veteran's diagnosed sleep apnea is related either to his service or his pending claim for service connection for an acquired psychiatric disability. Moreover, the evidence presented warrants an examination into the Veteran's contentions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examinations with appropriate VA examiners to identify any sleep disorders, to include sleep apnea, and/or acquired psychiatric disabilities to include major depressive disorder with anxiety and PTSD and their etiology(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. (A). After considering the pertinent information in the record in its entirety, the VA examiner should identify any psychiatric disorders, to include major depressive disorder with anxiety and PTSD. The examiner is asked to opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that any identified acquired psychiatric disabilities, to include major depressive disorder with anxiety and PTSD were incurred or aggravated by his active duty OR is otherwise etiologically related to his active service. (i). In providing an opinion, the examiner should be aware that the Veteran's in-service stressor in the form of participation in the 1969 Tet Offensive has been established by the Board. (ii). The examiner should take a detailed history from the Veteran regarding the onset of his acquired psychiatric disability and any continuity of symptoms since that time. (B). After considering the pertinent information in the record in its entirety, the VA examiner should identify any sleep disorders, to include sleep apnea. The examiner is asked to opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that any sleep disorder identified, to include sleep apnea, was incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his acquired psychiatric disability. (i). In providing an opinion, the examiner should comment on the Veteran's provided article "Study Finds High Risk of Sleep Apnea in Young Veterans with PTSD," published by the American Academy of Sleep Medicine in May 19, 2015." (ii). The examiner should also comment on The October 2012 VA examination reference to a chronic sleep impairment as a symptom of his acquired psychiatric disability (iii). The September 2003 General VA examination wherein the Veteran reported that he had consistent problems with his sleep since his separation from service. The VA examiner should be aware that this statement was made years before the Veteran applied for Veteran benefits. (iv). The examiner should take a detailed history from the Veteran regarding the onset of his sleep symptoms and any continuity of symptoms since that time. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs