Citation Nr: 18141333 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 07-36 293 DATE: October 10, 2018 ORDER 1. The appeal to reopen a claim of service connection for hypertension is denied. 2. Service connection for diabetes mellitus is denied. 3. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED 4. The appeal to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is remanded. 5. Entitlement to service connection for residuals of a head injury/traumatic brain injury (TBI), is remanded. 6. Entitlement to service connection for headaches is remanded. 7. Entitlement to service connection for a sleep disorder is remanded. 8. Entitlement to service connection for a liver disorder is remanded. 9. Entitlement to service connection for a dental disorder for treatment purposes is remanded. 10. Entitlement to a rating in excess of 40 percent for seizure disorder is remanded. 11. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A March 2006 rating decision denied service connection for hypertension, finding that any such disability was not etiologically related to the Veteran’s service. 2. Evidence received since the March 2006 rating decision does not tend to relate the Veteran’s hypertension to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for hypertension; and does not raise a reasonable possibility of substantiating such claim. 3. Diabetes mellitus was not manifested in service or for many years thereafter, and is not shown to be etiologically related to the Veteran’s service. 4. The 10 percent rating assigned for tinnitus is the maximum schedular rating for such disability; factors warranting referral for extraschedular consideration are not shown or alleged. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for hypertension may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for diabetes mellitus is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. A rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code (Code) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1972 to December 1973. These matters are before the Board of Veterans' Appeals (the Board) on appeal from September 2010 and April 2017 rating decisions. In April 2012 a videoconference hearing was held before the undersigned on 3 of the issues. In August 2012, the Board found new and material had been received and reopened the claim of service connection for residuals of a head injury, and remanded it for de novo consideration, and remanded claims of service connection for headaches and a dental disability (for treatment purposes), and seeking a TDIU rating. In July 2015 these matters were remanded. A DRO hearing was held in June 2016. The Veteran's service treatment records (STRs) are silent for complaints or findings concerning hypertension or diabetes. On November 1973 service separation examination, his endocrine system was normal; urinalysis was negative for sugar and albumin; blood pressure was 112/70. When the Veteran was admitted to a VA hospital for unrelated complaints in January 1997, his blood pressure was 141/67. Private medical records show that in July 1999, the Veteran’s blood pressure was 153/78. A past medical history of hypertension was noted. He was hospitalized in November 2001; diagnoses included arteriosclerotic heart disease and hypertension. VA medical records show that in June 2005, the diagnoses included rule out diabetes. A March 2006 rating decision denied service connection for hypertension, finding that such disability was not manifested in service or within the following year (and was unrelated to service). The Veteran was notified of the rating decision and did not appeal it. October 2011 and October 2012 VA outpatient treatment records note that the Veteran had a several-year history of diabetes and hypertension. On September 2012 VA tinnitus examination, the Veteran stated that he has recurrent tinnitus that comes and goes. November 2014 VA medical records show a notation of tinnitus on a systems review. The appeal to reopen a claim of service connection for hypertension is denied. When there is a final rating decision denial of a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. 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(a). The requirement for new and material evidence to raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran did not appeal the March 2006 rating decision that denied service connection for hypertension and it became final. 38 U.S.C. § 7105. Consequently, new and material evidence to reopen this claim is required before it may be considered de novo. As the March 2006 rating decision denied the Veteran service connection for hypertension on the basis that such disability was not manifested in service or within the following year (and was unrelated to service), for evidence to pertain to an unestablished fact necessary to substantiate the claim, and be new and material, it would have to tend to show that his hypertension is etiologically related to his service. The pertinent evidence added to the record since the March 2006 rating consists of VA outpatient treatment records which merely show that he has hypertension (and its treatment); that information was previously of record, is not new, and does not pertain to the etiology of the Veteran’s hypertension (the unestablished fact necessary to substantiate the claim). No evidence received since the March 2006 rating decision that denied service connection for hypertension is new evidence that positively bears on the unestablished fact necessary to substantiate the claim (relates the Veteran’s hypertension to his service) and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for hypertension may not be reopened. Service connection for diabetes mellitus is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases (including diabetes mellitus) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for diabetes mellitus). 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for diseases listed in 38 C.F.R. § 3.309(a) may be established by showing continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s STRs are silent for complaints, findings, or diagnosis of diabetes mellitus. On November 1973 service separation examination his endocrine system was normal on clinical evaluation. There is no indication in the record that diabetes was manifested in service or for years thereafter. The initial indication of diabetes was in 2005, more than 31 years after the Veteran's discharge from service. Accordingly, service connection for diabetes on the basis that it became manifest in service, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112) is not warranted. As diabetes was not manifested for many years after service, service connection based on continuity of symptomatology (under 38 C.F.R. § 3.303(b)) is also not warranted. The Veteran has not provided any competent evidence linking his diabetes mellitus to service. He is a layperson, and has not presented any medical opinion or treatise evidence supporting his claims that his diabetes is related to service. His own opinion has no probative value in this matter. There is no competent evidence that his diabetes mellitus is, or may be, etiologically related to his service. Accordingly, the preponderance of the evidence is against the claim of service connection for diabetes mellitus, and the appeal in the matter must be denied. A rating in excess of 10 percent for tinnitus is denied. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This analysis is undertaken considering the possibility that different ratings may be warranted for different time periods, based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 10 percent rating is warranted for recurrent tinnitus. Note (2) following Code 6260 provides: Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived on one ear, both ears, or in the head. 38 C.F.R. § 4.87, Code 6260. The 10 percent rating currently assigned for the Veteran’s tinnitus is the maximum schedular rating for such disability. Consequently, although he reports the tinnitus has increased in intensity (and is competent to observe such worsening), the governing regulation does not provide authority for a schedular rating in excess of 10 percent for such disability. If the evidence shows symptoms or impairment not encompassed by the scheduler criteria (such as frequent hospitalizations, marked interference with employment) referral for consideration of an extraschedular rating (under 38 C.F.R. § 3.321) would be indicated. However, such symptoms are not shown (or alleged), and referral for extraschedular consideration is not warranted. Accordingly, a rating in excess of 10 percent is not warranted. REASONS FOR REMAND 4. The appeal to reopen a claim of service connection for PTSD is remanded. 5. Entitlement to service connection for residuals of a head injury, to include as due TBI is remanded. 6. Entitlement to service connection for headaches is remanded. 7. Entitlement to service connection for a sleep disorder is remanded. 8. Entitlement to service connection for a liver disorder is remanded. 9. Entitlement to service connection for a dental disorder for treatment purposes is remanded. 10. Entitlement to a rating in excess of 40 percent for a seizure disorder is remanded. 11. Entitlement to a TDIU rating is remanded Regarding the claims of service connection for residuals of a head injury, to include TBI, and headaches, in September 2015 a VA physician who reviewed the record opined that the Veteran did not meet the criteria for a diagnosis of TBI. He also opined that the Veteran's migraine headaches were not caused by service or a service-connected disability. He stated that the Veteran's current headaches are not related to the headaches documented in service. In May 2018, a private physician completed a VA headaches Disability Benefits Questionnaire (DBQ), and opined that it was at least as likely as not that the Veteran's headaches began in service. He stated that the headaches were caused/aggravated by a combination of tinnitus, a psychiatric disability and seizures. He reviewed at least some records, including the October 2012 VA examination report and the opinion provided in September 2015. The physician noted that the Veteran told him that flare-ups of tinnitus bring on headaches, and stated that it is known that damage to the auditory system resulting in tinnitus can cause headaches. There are conflicting medical opinions in this matter, neither fully adequate. An adequate medical advisory opinion is necessary. In May 2018, a private physician completed a VA sleep apnea DBQ. The diagnosis was obstructive sleep apnea (OSA). The physician noted that treatment records show that OSA was diagnosed in March 2008 and was again noted in May 2016. He stated that seizures, anxiety and anti-depressants have aided in the development of and permanent aggravation of OSA. He noted that research shows that OSA is frequent in patients with epilepsy. As mere co-existence of two disabilities does not, of itself, suggests an etiological relationship, the rationale provided is inadequate for rating purposes. Regarding the appeals to reopen a claim of service connection for PTSD, and to establish service connection for a liver disorder and for a dental disability (for treatment purposes), additional evidence regarding these matters has been received since the September 2017 supplemental statement of the case (SSOC), and has not been considered by the agency of original jurisdiction (AOJ). VA outpatient treatment records show that in January 2018 the Veteran reported left facial and dental pain. In March 2018, he stated that on the previous day he was discharged from Singing River Hospital (after receiving treatment of depression and suicidal ideation). In June 2018, it was noted that he had known liver disease. Regarding seizures, on March 2017 VA examination, the Veteran stated that his most recent seizure was in January 2017. Records since then show that in January 2018 he was observed [by visitors] having a seizure in the lobby of a VA facility. A contemporaneous examination to assess the seizure disorder is necessary. The matter of entitlement to a TDIU rating is inextricably intertwined with the other claims remanded, and consideration of that matter must be deferred pending resolution of the other remanded claims. The matters are REMANDED for the following: 1. Ask the Veteran to identify the providers of all evaluations and treatment he has received for headaches, a head injury, and a sleep disorder since his discharge from service and for seizures since January 2017, and to submit authorizations for VA to secure records of any such private evaluations or treatment. Secure for the record all outstanding records of the evaluations and treatment from all providers identified 2. Then arrange for a neurological examination of the Veteran to determine the nature and likely etiology of any headache disability and/or residuals of a head injury, to include TBI, and to assess the severity of his seizure disorder. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. On examination of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) any headache disorder found. (b) Identify the likely etiology for the diagnosed headache disability (to include whether it at least as likely as not is due to trauma or was caused or aggravated by a service-connected disability such as a seizure disorder or tinnitus. (c) Indicate whether the Veteran has any other current disability that is a residual of head trauma/TBI in service (if so, identify the disability by diagnosis). The examiner should specifically address the findings of the May 2018 private examiner regarding the etiology of the Veteran’s OSA (caused or aggravated by seizures and prescribed anti-depressants) expressing (with rationale) agreement with the opinion then offered. , and state whether it is at least as likely as not (a 50 percent or greater probability) that any such disability was caused or aggravated (the opinion must address aggravation) by his service-connected seizure disorder or tinnitus. (d) Describe the nature and severity of the Veteran’s seizure disorder in detail, noting whether the seizures are major or minor, their frequency (per month), their duration, and their disabling effects. The examiner must include rationale with all opinions. 3. Arrange for the Veteran to be examined by an appropriate clinician to confirm the diagnosis of OSA (and establish its etiology). On examination of the Veteran and review of his record, the examiner should: (a) Indicate whether the Veteran has a diagnosis of OSA confirmed by sleep study. (b) If so, identify its likely etiology (whether incurred in service or caused or aggravated by a service connected disability such as a seizure disorder or tinnitus). Comment specifically on the May 2018 private provider’s opinion suggesting that the Veteran’s OSA was caused or aggravated (the opinion must address aggravation) by his service-connected seizure disorder or medication for anxiety. (c) If OSA is not found, identify (by diagnosis) any other sleep disorder found (and identify its likely etiology). The examiner must include rationale with all opinions. 4. Review the updated record and issue a SSOC (reflecting review of the entire record, and specifically all records received for the record since September 2017) addressing the appeals to reopen a claim of service connection for PTSD, and to establish service connection for liver disease and for a dental disability (for treatment purposes). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel