Citation Nr: 18143222 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-35 639 DATE: October 18, 2018 ORDER The application to reopen a claim of service connection for diabetes mellitus, to include as secondary to herbicide exposure, is granted. The application to reopen a claim of service connection for an acquired psychiatric disability (claimed as PTSD, depression, anxiety, and memory loss) is granted. Entitlement to service connection for a left elbow disability is denied. Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for hypertensive heart disease is denied. Entitlement to service connection for dyslipidemia is denied. Entitlement to service connection for benign prostate hyperplasia (BPH) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability (claimed as PTSD, depression, anxiety, and memory loss) is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to herbicide exposure and diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to herbicide exposure and diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to herbicide exposure and diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure and diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicide exposure and diabetes mellitus, is remanded. FINDINGS OF FACT 1. In September 2008, the RO denied service connection for an acquired psychiatric disability and diabetes mellitus; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance. 2. Evidence associated with the claims file since the September 2008 rating decision raises a reasonable possibility of substantiating the acquired psychiatric disability and diabetes mellitus claims. 3. The Veteran does not have a left elbow disability. 4. The Veteran does not have a right elbow disability. 5. The Veteran does not have a left shoulder disability. 6. The Veteran does not have a right shoulder disability. 7. A left wrist disability is not related to service. 8. The Veteran does not have a right wrist disability. 9. A cervical spine disability is not related to service. 10. A low back disability is not related to service. 11. The Veteran does not have a left hip disability. 12. The Veteran does not have a right hip disability. 13. The Veteran does not have a left knee disability. 14. A right knee disability is not related to service. 15. The Veteran does not have a left ankle disability. 16. The Veteran does not have a right ankle disability. 17. The Veteran does not have tinnitus. 18. The Veteran does not have obstructive sleep apnea. 19. The Veteran does not have hypertensive cardiovascular disease. 20. Dyslipidemia is not related to service. 21. BPH is not related to service. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied a claim for an acquired psychiatric disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2017). 2. Evidence received since the September 2008 decision is new and material; the claim for service connection for an acquired psychiatric disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 3.381, 4.150, 20.1103 (2017). 3. The September 2008 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2017). 4. Evidence received since the September 2008 decision is new and material; the claim for service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 3.381, 4.150, 20.1103 (2017). 5. The criteria for service connection for a left elbow disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 6. The criteria for service connection for a right elbow disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 7. The criteria for service connection for a left wrist disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 8. The criteria for service connection for a right wrist disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 9. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 10. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 11. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 12. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 13. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 14. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 15. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 16. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 17. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 18. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 19. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 20. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 21. The criteria for service connection for hypertensive cardiovascular disease are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 22. The criteria for service connection for dyslipidemia are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 23. The criteria for service connection for BPH are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1965 to October 1967. He served in Vietnam from April 1966 to May 1967 and has presumed exposure to herbicides. He received the Combat Infantryman Badge. The psychiatric issue has been recharacterized given the nature of the Veteran’s claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence A claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156 (a), new evidence means existing evidence not previously submitted to agency decisionmakers. 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 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). 1. The application to reopen a claim of service connection for diabetes mellitus 2. The application to reopen a claim of service connection for an acquired psychiatric disability In September 2008, the RO denied service connection for PTSD and diabetes mellitus. The Veteran did not appeal this decision and no new and material evidence was received within one year of this decision. As such, it became final. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Board acknowledges that, in the February 2018 rating decision, the RO addressed the merits of the service connection claim for an acquired psychiatric disability. However, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board also acknowledges that, in addition to the various acquired psychiatric conditions claimed, the Veteran has claimed entitlement to memory loss, which is not psychiatric in nature. Nevertheless, VA regulations address cognitive and psychiatric disorders under a common rating schedule as “mental disorders.” Therefore, the Board has addressed these in a single service connection claim notwithstanding that the cognitive disorder claim is not subject to the reopening requirements applicable to the psychiatric claim. Since the September 2008 rating decision, new evidence has been submitted. In an August 2017 correspondence, a private provider diagnosed diabetes mellitus, type II; generalized anxiety disorder; major depression disease; PTSD; and memory disorder, not otherwise specified. He opined that these conditions are “more probable than not secondary to [the Veteran’s] military service.” The opinion is presumed credible for reopening a claim under Justus v. Principi, 3 Vet. App. 510 (1992). The evidence relates to previously unestablished elements of the claims (nexus and current disability) and raises a reasonable possibility of substantiating the claims. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence is considered both new and material. Thus, these claims are reopened and addressed in the Remand below. Service Connection Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303 (b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 3. Entitlement to service connection for a left elbow disability 4. Entitlement to service connection for a right elbow disability 5. Entitlement to service connection for a left wrist disability 6. Entitlement to service connection for a right wrist disability 7. Entitlement to service connection for a left shoulder disability 8. Entitlement to service connection for a right shoulder disability 9. Entitlement to service connection for a cervical spine disability 10. Entitlement to service connection for a low back disability 11. Entitlement to service connection for a left hip disability 12. Entitlement to service connection for a right hip disability 13. Entitlement to service connection for a left knee disability 14. Entitlement to service connection for a right knee disability 15. Entitlement to service connection for a left ankle disability 16. Entitlement to service connection for a right ankle disability 17. Entitlement to service connection for tinnitus 18. Entitlement to service connection for obstructive sleep apnea 19. Entitlement to service connection for hypertensive heart disease 20. Entitlement to service connection for dyslipidemia 21. Entitlement to service connection for BPH Service treatment records (STRs) reveal no pertinent complaints, treatments, or diagnoses. The March 1965 pre-induction examination reveals normal clinical findings for all systems except the feet (mild pes planus). The October 1965 induction examination and the September 1967 separation examination also reveal normal clinical findings for all systems. Subsequently, there are no pertinent complaints, treatments, or diagnoses for approximately 40 years. The Veteran has never provided any specific information in support of his claim that the conditions on appeal were incurred as a result of service. VA treatment records establish a current cervical spine disability, low back disability, left wrist disability, right knee disability, dyslipidemia, and BPH. There is no diagnosis or evidence of a disability pertaining to the shoulders, elbows, right wrist, hips, left knee, ankles, heart, tinnitus, or sleep apnea. The January 2018 VA examiner affirmatively found no tinnitus based on the Veteran’s failure to report this condition. The only medical evidence in favor of a diagnosis of these conditions comes from the August 2017 report of Dr. Mora. However, that report is accorded reduced probative weight in comparison to the other medical evidence of record. First, Dr. Mora never stated that he actually examined the Veteran. His entire report is phrased in terms of a recitation of the Veteran’s statements, e.g., “the Veteran refers....” or “The Veteran complains....” or “The Veteran presents.” Notably, his report is titled “Medical Data Review.” Moreover, Dr. Mora concluded with the statement that the Veteran would have to be re-evaluated to determine benefits. This seems to imply that he was not actually examined, or at least, was not carefully examined. Dr. Mora’s report is also directly contradicted by the evidence of record. For example, he maintains that the Veteran has had tinnitus “since his military service.” This is patently false, as the Veteran has specifically denied tinnitus, and has been found not to have tinnitus on VA examination and on multiple VA outpatient evaluations. This medical evidence is more persuasive than the statement of Dr. Mora. Therefore, with respect to the claimed disabilities of the shoulders, elbows, right wrist, hips, left knee, ankles, heart, tinnitus and sleep apnea, the Board finds that the first Shedden element is not met. While the presence of a disability at any time during the claim process can justify a grant of service connection even where the most recent diagnosis is negative, McClain v. Nicholson, 21 Vet. App. 319 (2007), entitlement to service-connection is specifically limited to cases where such in-service disease or injury has resulted in disability. See 38 U.S.C. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). STRs provide probative and persuasive evidence that there was no injury or disease in service regarding the currently diagnosed cervical spine disability, low back disability, left wrist disability, right knee disability, dyslipidemia, or BPH. Thus, the second Shedden element is not met for any of the claims for which there is a current disability. In addition, Dr. Mora provided no rationale whatsoever for his opinion linking the multitude of current disabilities cited in his report to service. He provided no identification of a precipitating injury or disease in service. As noted above, STRs show that there were no such precipitating injuries or diseases. Accordingly, the third Shedden element is not met for any of the claims on appeal. The Veteran contends that the conditions on appeal were incurred in, or the result of, his military service. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For example, a veteran is competent to discuss the existence of pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the etiology of a disability is a complex medical question that is not within the competency of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As noted above, Dr. Mora’s statement is afforded little probative value. The Board finds the January 2018 VA examination report and VA treatment records more probative than the lay opinion of the Veteran. REASONS FOR REMAND 22. Entitlement to service connection for an acquired psychiatric disability The March 1965 pre-induction examination and the October 1965 induction examination contain a normal psychiatric review. A June 1966 STR shows that the Veteran reported feeling tired despite getting adequate sleep. The diagnosis was depressed fatigue. The September 1976 separation examination contains a normal psychiatric review, and the Veteran denied any psychiatric symptoms on the accompanying medical history report. VA treatment records dated from July 2000 to February 2018 contain several negative PTSD and depression screens. The Veteran submitted to a February 2008 VA PTSD examination. He denied any outpatient mental health treatment. The examiner reviewed the claims file and diagnosed alcohol abuse. He determined that no PTSD symptoms were present and that the Veteran did not meet the criteria for a DSM-IV PTSD diagnosis. In August 2017, the Veteran submitted a report from Dr. Mora. He diagnosed generalized anxiety disorder, major depression disease, PTSD, and memory disorder not otherwise specified. He opined that the Veteran’s psychiatric disorders “are more probable than not secondary to his military service.” He provided no rationale for this opinion. The Veteran submitted to a second VA PTSD examination in January 2018. The examiner diagnosed alcohol use disorder, moderate, and alcohol induced mood disorder. He found that the Veteran did not meet the criteria for a DSM-5 PTSD diagnosis. The examiner acknowledged Dr. Mora’s August 2017 opinion, but noted that it could not be considered positive evidence. He explained that there was no medical data for Dr. Mora to review since the Veteran had never received mental health treatment. Unfortunately, this opinion is not adequate for rating purposes. First, the Veteran’s STRs were not available for review. Second, the VA examiner’s explanation that alcohol use disorder is a risk factor for mood disorders, and that the two conditions are commonly comorbid, is not specific to the Veteran. Thus, the claim is remanded for another opinion. 23. Entitlement to service connection for diabetes The RO denied reopening of the claim of service connection for diabetes mellitus disability and did not consider the underlying merits of the claim. As the Board has granted the application to reopen, it cannot consider the merits of the claim unless it finds that the Veteran would not be prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 393 (1993); Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (citing 38 U.S.C. § 7104 (a)); see also id. at 403 (when the Board reopens a claim after the RO has denied reopening, the Board generally should remand the claim to the RO to consider the evidence and render a new decision). The record reflects that the RO failed to readjudicate the claim. This must be done on remand. 24. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to herbicide exposure and diabetes mellitus 25. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to herbicide exposure and diabetes mellitus 26. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to herbicide exposure and diabetes mellitus 27. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to herbicide exposure and diabetes mellitus 28. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicide exposure and diabetes mellitus Finally, because a decision on the remanded diabetes issue could significantly impact a decision on the peripheral neuropathy and erectile dysfunction isses, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for peripheral neuropathy of the upper and lower extremities and erectile dysfunction is required. The matters are REMANDED for the following action: 1. Adjudicate on the merits the issue of service connection for diabetes mellitus. This should include any necessary development, including obtaining pertinent records of treatment or an examination if needed. All development should be documented in the claims folder. 2. Schedule a VA examination to determine the nature and etiology of any currently diagnosed psychiatric disability. The claims folder must be provided to the examiner for review in conjunction with the examination. The examiner should provide the following opinions: After reviewing all pertinent records, and examining the Veteran, what is the most appropriate psychiatric diagnosis? Is it at least likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disability is related to the Veteran’s period of active military service? The examiner should review the June 1966 STR, the September 1976 separation examination, the negative PTSD and depression screens contained in the VA treatment records, the February 2008 VA examination, and the January 2018 VA examination. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel