Citation Nr: 18140840 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-18 262 DATE: October 9, 2018 ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and bipolar disorder, is reopened; to this extent only, the claim is granted. The claim of entitlement to service connection for a low back condition is reopened; to this extent only, the claim is granted. The claim of entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disorder (COPD) and acute asthmatic bronchitis, is reopened; to this extent only, the claim is granted. Entitlement to service connection for aches in the posterior is denied. Entitlement to service connection for chest pains is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for diabetes mellitus type II is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a respiratory condition is remanded. FINDINGS OF FACT 1. Evidence received since the final April 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating such claim. 2. Evidence received since the final April 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disorder and raises a reasonable possibility of substantiating such claim. 3. Evidence received since the final April 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a respiratory disorder and raises a reasonable possibility of substantiating such claim. 4. The competent medical evidence does not demonstrate that the Veteran has a diagnosable condition manifested by aches in the posterior region that is attributable to his active service or any incident of service. 5. The competent medical evidence does not demonstrate that the Veteran has a diagnosable condition manifested by chest pain that is attributable to his active service or any incident of service. 6. The competent medical evidence does not demonstrate that the Veteran’s diagnosed sleep apnea was incurred in service or is otherwise attributable to the Veteran’s active service or any incident of service. 7. The competent medical evidence does not demonstrate that hypertension is attributable to the Veteran’s active service or any incident of service; moreover, the condition did not manifest within one year of the Veteran’s discharge from service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for an acquired psychiatric disorder may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. New and material evidence has been received, and the claim of service connection for a low back disorder may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 3. New and material evidence has been received, and the claim of service connection for a respiratory disorder may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 4. The criteria for service connection for aches in posterior have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for chest pains have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 7. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from February 1975 to August 1975 and on active duty from April 1977 to September 1977. These matters were last before the Board in October 2015, whereupon they were remanded to the RO for the issuance of a statement of the case. After the RO issued two contemporaneous statements of the case each dated in April 2016, and the Veteran submitted a formal appeal of the issues on an April 2016 VA Form 9, these matters were returned to the Board for its adjudication. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for PTSD currently on appeal, and the former claim of entitlement to service connection for bipolar disorder, as one for an acquired psychiatric disorder, to include PTSD and bipolar disorder. Similarly, the Board has also recharacterized the claim of entitlement to service connection for acute asthmatic bronchitis as one for a respiratory disorder, to include acute asthmatic bronchitis and COPD. Reopening Previously Denied Claims Final decisions may only be reopened if new and material evidence is received. 38 U.S.C. § 5108. “New evidence” is defined as existing evidence not previously submitted to agency decision makers; “material evidence” is defined as 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 most recent 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(a). For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption does not extend to the weight of the evidence, however. Id. The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Court stated in Shade, when making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should consider whether the evidence could, if the claim was reopened, reasonably result in substantiation of the claim, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Reopening the claim of service connection for an acquired psychiatric disorder Since the prior final denial, the Veteran has submitted an August 2015 disability benefits questionnaire and psychological assessment from a Dr. H. H.-G. in which she opined that it was more likely than not that the Veteran has bipolar disorder which is permanently aggravated by his service-connected pseudofolliculitis barbae. This psychological assessment and private opinion raises the suggestion that the Veteran’s acquired psychiatric disorder, be it characterized as bipolar disorder, PTSD or otherwise, is service-connected on a secondary basis as aggravated by pseudofolliculitis barbae. This satisfies the low threshold necessary to reopen the claim of service connection, and thus, for the limited purpose of reopening the claim the Veteran’s request is granted; the issue of entitlement to service connection for an acquired psychiatric disorder is addressed below. 2. Reopening the claim of service connection for a low back disorder. Since the prior final denial, the Veteran underwent a general VA medical examination dated in February 2011 which revealed that he was still experiencing low back pain. The examiner listed the onset of the low back pain as January 2006; however, this does not accord with the evidence of record, which shows that the Veteran reported experiencing back pain for many years prior to his having initially submitted a claim for the condition. Moreover, the Veteran had an isolated complaint of low back pain while on duty in November 1975. The Board thus finds that the low threshold necessary to reopen the claim of service connection has been satisfied, and, as such, the Veteran’s request to reopen the claim is granted. The issue of entitlement to service connection for a low back disorder is addressed below. 3. Reopening the claim of service connection for a respiratory condition Since the claim of entitlement to service connection for acute asthmatic bronchitis was most recently denied in a final April 2006 rating decision, the Veteran underwent a general VA medical examination dated in February 2011 in which the examiner endorsed a diagnosis of COPD. This diagnosis was based on an October 2005 pulmonary function test, which reflected abnormalities in the Veteran’s breathing ability. Subsequent VA treatment records show continued treatment for COPD. The Board further notes that the Veteran sought treatment for sinus congestion in service in June 1977 and was also diagnosed with an upper respiratory infection in service in June 1975. He was diagnosed with acute asthmatic bronchitis and recurrent asthma in September 1978 by a private physician. Taken together, this evidence raises the suggestion that the Veteran developed a respiratory condition while in service that has persisted to the present. Accordingly, for the limited purpose of reopening the claim of service connection the Veteran’s request is granted; the issue of entitlement to service connection for a respiratory condition is addressed below. Service Connection 1. Entitlement to service connection for aches in the posterior The Veteran has stated in a correspondence dated on September 2012 that he did not intend to file an appeal seeking service connection for aches in the posterior; however, he has since preserved this issue on appeal by expressly listing it on the April 2016 formal appeal on VA Form 9. As such, the Board is obligated to consider the claim on the merits. The question before the Board is whether the Veteran has a diagnosable condition manifested by aches in the posterior that began during service or are at least as likely as not related to an in-service injury, event, or disease. A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses specifically concerning any pains in the posterior region. Accordingly, service connection on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. VA and private medical records also do not show that the Veteran has specifically sought treatment for any pain in the posterior region. The Veteran has not been afforded an examination in connection with the service connection claim for pain the posterior region, but VA does not have a duty to provide one here, as there is no indication that the condition, even if present, has been present during the pendency of this appeal, or that it may be associated with the Veteran’s service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent evidence to suggest that the Veteran has ever had a separately diagnosable medical condition manifested by aches in the posterior region. Moreover, the Veteran has not submitted any evidence or testimony of his own in support of the claim. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of any such condition manifested by aches in the posterior region. Without any supporting records or testimony, the Board concludes that the preponderance of the evidence is against a determination that the Veteran has had a separately diagnosable condition manifested by pain in the posterior region at any time during the pendency of the claim. Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for chest pains The Veteran has stated in a correspondence dated on September 2012 that he did not intend to file an appeal seeking service connection for chest pains; however, he has since preserved this issue on appeal by expressly listing it on the April 2016 formal appeal on VA Form 9. As such, the Board is obligated to consider the claim on the merits. The question before the Board is whether the Veteran has a diagnosable condition manifested by chest that began during service or are at least as likely as not related to an in-service injury, event, or disease. A review of the Veteran’s service treatment records shows that he complained of chest pain in service in June 1977; however, the pain was attributed to a physical altercation the previous day. Subsequent service treatment records, to include the August 1977 discharge examination, do not reflect that the Veteran received any diagnosis of or further treatment for a disability manifested by chest pains. Post-service VA and private medical records show that the Veteran has reported experiencing chest pain infrequently but has never received a diagnosis to specifically account for these intermittent complaints. The Veteran is diagnosed with hypertension, but to date no chest pain symptomatology has ever been associated with the condition. He was afforded a myocardial perfusion test in November 2011 which showed no significant abnormalities. The Veteran has not been afforded an examination in connection with his chest pains service connection claim, but VA does not have a duty to provide one here, as there is no indication that the condition, even if present, has been present during the pendency of this appeal, or that it may be associated with the Veteran’s service. See McLendon, supra. There is no competent evidence to support that the Veteran has a diagnosable condition manifested by chest pain. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of any such chest pain disorder. Without any supporting records or testimony, the Board concludes that the preponderance of the evidence is against a determination that the Veteran has had a diagnosable condition manifested by chest pain at any time during the pendency of the claim. Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for obstructive sleep apnea The Veteran contends generally that his sleep apnea is attributable to service. The question for the Board is whether the Veteran has sleep apnea that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has sleep apnea, the preponderance of the evidence is against a finding that the sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease, to include on an aggravation basis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to sleep apnea. Specifically, he was not evaluated as having any difficulties sleeping on his August 1977 discharge examination, and did not report any sleeping issues on the corresponding August 1977 Report of Medical History. Post-service, the Board’s review of available medical records indicates that sleep apnea was first diagnosed through VA in 2009. Subsequent medical records show continued treatment for the condition with the use of a continuous positive airway pressure (CPAP) machine. Sleep apnea was listed as one of the Veteran’s presenting medical problems on the February 2011 VA general examination, but the examiner did not specifically evaluate the condition. The Veteran has not been afforded an examination in connection with his sleep apnea service connection claim, but VA does not have a duty to provide one here, as there is no indication that the condition be associated with the Veteran’s service. See McLendon, supra. He has not presented any competent evidence or testimony in support of the claim, and there are no records of the Veteran receiving a diagnosis of or treatment for the condition prior to 2009. There is simply no competent evidence to support that the condition first diagnosed over 30 years after the Veteran’s discharge is related to service. The Veteran’s own lay opinion as to the onset and etiology of sleep apnea does not constitute competent evidence, as he lacks medical training or credentials. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of his sleep apnea. Without any evidence in support of the Veteran’s claim, the Board finds that no medical nexus exists between the Veteran’s sleep apnea and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 4. Entitlement to service connection for diabetes mellitus type II. The Veteran contends generally that his diabetes mellitus type II is attributable to service. The question for the Board is whether the Veteran has diabetes mellitus type II that began during service or is at least as likely as not related to an in-service injury, event, or disease. In the alternative, the question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has diabetes mellitus type II, which is a chronic disease under the appropriate regulations, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to diabetes mellitus type II. Accordingly, service connection for diabetes mellitus type II on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. VA treatment records show that the Veteran was first diagnosed with diabetes mellitus type II in 2009. He has been followed for diabetes mellitus type II through VA ever since. The record reflects that the first diagnosis of diabetes mellitus type II occurred over 30 years after the Veteran’s separation from service and many years outside of the applicable presumptive period. Accordingly, service connection for diabetes mellitus type II on a presumptive basis as a chronic disease is denied. 38 C.F.R. § 3.307(a)(3). While the Veteran is competent to report having experienced symptoms of diabetes mellitus type II and when they began, he is not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of hypertension. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran’s diabetes mellitus type II was evaluated during the February 2011 VA general examination. Although the examiner did state that the diabetes mellitus did not occur during active service, they did not offer any opinion as to the likely etiology of the condition. That having been noted, VA does not have a duty to provide an etiology opinion here, as there is no indication that diabetes mellitus type II may be associated with the Veteran’s service. See McLendon, supra. There is clear evidence in the file that the Veteran has diabetes mellitus type II, but there is nothing to support that the condition, which was first diagnosed over 30 years after his discharge, is attributable to service. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of his diabetes mellitus type II. Without any evidence in support of the Veteran’s claim, the Board finds that no medical nexus exists between the Veteran’s diabetes mellitus type II and an in-service injury, event or disease. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran submitted an August 2015 psychological assessment by a Dr. H. H.-G. in which she opined that it was at least as likely as not that the Veteran had bipolar disorder that was permanently aggravated by service-connected pseudofolliculitis barbae. The Veteran has never been afforded a VA examination to evaluate whether he has an acquired psychiatric disorder that was attributable on a secondary basis to the service-connected pseudofolliculitis barbae, and is therefore entitled to one. On remand, he must be scheduled for an examination to determine the proper diagnosis of his acquired psychiatric disorder and then provide an opinion as to the likelihood that any diagnosed psychiatric disorder is attributable to a service-connected disorder or was permanently aggravated by one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a low back disorder. The Veteran has never been afforded a VA examination to evaluate the etiology of his low back disorder. Service treatment records show that he sought treatment for low back pain in service in November 1975. Post-service medical records detail his reporting of low back pain as early as 1998. Taken together, the evidence raises the possibility that the Veteran currently has a low back condition that he either developed during service or which is attributable to his complaint of low back pain in service. He is therefore entitled to an examination to evaluate whether he has a low back condition that either manifested during service or is otherwise attributable to service. McLendon, supra. 3. Entitlement to service connection for a respiratory disorder. The Veteran has never been afforded a VA examination to evaluate the etiology of his respiratory disorder. Service treatment records show that he sought treatment for sinus congestion in service in June 1977 and was also diagnosed with an upper respiratory infection in service in June 1975. Post-service, he was diagnosed with acute asthmatic bronchitis and recurrent asthma in September 1978, and he currently receives treatment for COPD through VA. Taken together, the evidence raises the possibility that the Veteran currently has a respiratory disorder that he either developed during service or which is attributable to his complaints of respiratory issues in service. He is therefore entitled to an examination to evaluate whether he has a respiratory disorder that either manifested during service or is otherwise attributable to service. McLendon, supra. The matters are remanded for the following action: 1. Schedule the Veteran for a VA medical examination to address the nature and etiology of his low back condition and respiratory disorder. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to any symptoms of his separate conditions. All necessary special studies or tests must be accomplished. For both claimed condition, the examiner must determine the proper diagnosis to account for the Veteran’s symptomatology, and then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed low back condition and/or respiratory disorder is related to the Veteran’s active service. The examiner should consider, and discuss as necessary, the documented accounts of the Veteran having sought treatment while in service for symptoms of either condition. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. The Board notes the anatomical distinctions between the two conditions and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion to the RO and/or the examining medical facility. 2. Schedule the Veteran for a VA mental health examination to evaluate the nature and etiology of any diagnosable acquired psychiatric disorder, to include PTSD and/or bipolar disorder. The electronic claims file and any other information deemed pertinent must be provided to and reviewed by the examiner, and the examiner must carry out any and all special studies or tests, including psychological testing and evaluation, necessary for proper evaluation. The examiner must provide diagnoses for all psychiatric disorders found. The examiner must integrate the previous psychiatric findings and diagnoses with the most current treatment records to obtain a true picture of the nature of the Veteran’s psychiatric status. Thereafter, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder is related to service. Regardless of the answer, the examiner is also asked to provide an opinion as to whether it is at least as likely as not that any diagnosed acquired psychiatric disorder was caused or aggravated by the service-connected pseudofolliculitis barbae. In setting forth this opinion, the examiner should comment on Dr. H. H.-G.’s August 2015 opinion in which she found that it was at least as likely as not that the Veteran had bipolar disorder that was permanently aggravated by pseudofolliculitis barbae. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel