Citation Nr: 18143594 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 18-14 635 DATE: October 19, 2018 ORDER The appeal seeking service connection for a back disorder is dismissed. The appeal seeking service connection for chronic obstructive pulmonary disease (COPD) is dismissed. The appeal seeking increased ratings for chronic prostatitis, currently evaluated as 40 percent disabling from January 23, 2014, noncompensable from May 11, 2017, and 40 percent disabling from October 26, 2017, is dismissed. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. Service connection for bipolar disorder is granted. Service connection for congestive heart failure is granted. Service connection for an abdominal disorder is denied. Service connection for precancerous lesions is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Air Force from May 1954 to May 1974. 2. In May 2018, prior to the promulgation of a decision with respect to these appeals, the Veteran withdrew his claims seeking service connection for a back disorder and COPD and increased ratings for chronic prostatitis. 3. A final November 2014 rating decision denied service connection for depression; evidence received since that time is new and raises a reasonable possibility of substantiating the claim. 4. Bipolar disorder is causally or etiologically related to service. 5. Congestive heart failure was caused by or permanently worsened in severity by service-connected diabetes mellitus with hypertension. 6. An abdominal disorder and precancerous lesions were not incurred in, or are otherwise etiologically related to, service, including in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to service connection for a back disorder have been met. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.204. 2. The criteria for the withdrawal of the issue of entitlement to service connection for COPD have been met. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.204. 3. The criteria for the withdrawal of the issue of entitlement to increased ratings for chronic prostatitis have been met. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.204. 4. Evidence received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. Bipolar disorder was incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. Congestive heart failure is proximately due to, aggravated by, or the result of service-connected diabetes mellitus with hypertension. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 7. An abdominal disorder, diagnosed as chronic constipation, was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. Precancerous lesions were not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to these appeals, the Veteran withdrew his hearing request in a July 2018 written statement. See 38 C.F.R. § 20.704(d). The claims file contains a March 2017 letter from the Veteran’s representative indicating that a prior November 2016 Freedom of Information Act (FOIA) request had not yet been fulfilled. However, this request was completed in October 2017, when the representative was provided with a complete copy of the Veteran’s claims file, mailed to the correct address of record. Therefore, the Board finds that the November 2016 FOIA request was properly fulfilled, such that review of the matters on appeal may proceed at this time. Additionally, the Veteran is seeking earlier effective dates and increased initial ratings for his service-connected diabetes mellitus (as noted in an October 2017 Notice of Disagreement (NOD)); chronic prostatitis; right and left sciatic nerve peripheral neuropathy; right and left femoral nerve peripheral neuropathy; right and left upper extremity peripheral neuropathy; hypertension, nephropathy, and erectile dysfunction; effective dates for the awards of special monthly compensation; a total rating based on individual unemployability (TDIU) due to service-connected disabilities; Dependents’ Educational Assistance (DEA); and entitlement to sleep apnea (as noted in an April 2018 NOD). Although the NODs were timely, the Regional Office (RO) has not yet issued a Statement of the Case (SOC) with respect to these issues. Ordinarily, these issues would be remanded for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, these appeals streams remain active in the Veterans Appeals Control and Locator System (VACOLS) and development for these matters appears to be ongoing. Therefore, this situation is distinguishable from Manlincon, where an NOD had not been recognized. As such, a remand of these matters is not currently necessary. Withdrawals The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). Here, the Veteran submitted a July 2018 written statement withdrawing the appeals seeking service connection for a back disorder; service connection for COPD; and increased ratings for chronic prostatitis. No adjudicatory actions have been taken since that time. Moreover, these withdrawals were requested prior to the promulgation of a Board decision on these matters, such that there are no allegations of error of fact or law remaining for appellate consideration. Thus, the Board does not have jurisdiction to further consider these appeals and they are hereby dismissed. New and Material Evidence With respect to the psychiatric appeal, the Veteran initially sought service connection for depression. This appeal has since been expanded to include all acquired psychiatric disorders based upon the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). He now seeks to reopen this appeal based upon the submission of new and material evidence. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). To be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, this claim was denied in a November 2014 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the November 2014 rating decision became final. He subsequently requested to reopen the claim in March 2017. Thus, the Board must now determine whether new and material evidence has been received since the November 2014 rating decision to enable the reopening of the claim. In this respect, evidence considered at the time of the final November 2014 rating decision included: service personnel and treatment records (SPRs and STRs); assorted private treatment records; and multiple lay statements. Evidence added to the claims file since that time includes: an August 2017 private evaluation; VA treatment records through April 2018; additional private treatment records; and additional lay statements. This evidence is new as it was not of record at the time of the final November 2014 rating decision. This evidence further qualifies as material because it raises a reasonable possibility of substantiating the claim. In November 2014, the claim was denied upon the RO’s determination that the condition neither occurred in nor was caused by service. However, the newly submitted lay testimony provides further details regarding the circumstances of the Veteran’s military service and the nature and onset of his psychiatric symptoms. Additionally, the August 2017 private evaluation includes a positive nexus opinion linking the current disorder to the Veteran’s military service. Accordingly, new and material evidence has been received and the application to reopen the claim for service connection for an acquired psychiatric disorder is granted. Service Connection Finally, the Veteran is seeking service connection for multiple disorders. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In assessing the merits of these appeals, the Board will limit its analyses to those theories of entitlement as presented by the Veteran or the evidence of record. Psychiatric Disorder As it pertains to the psychiatric appeal, there is first competent evidence of a current disorder. An August 2017 private provider diagnosed the Veteran with bipolar disorder, currently depressed, severe, without psychotic features. VA and private treatment records also contain diagnoses of bipolar disorder, adjustment disorder with mixed anxiety and depressed mood, and depressive disorder. Thus, the first element of service connection—a current disability, best classified here as bipolar disorder—has been met. Next, the Veteran has reported that his symptoms onset during his assignment to a launch crew in Thailand. At that time, he experienced such symptoms as anxiety, hopelessness, and anger outbursts. This testimony stands as competent and credible evidence of the in-service onset of the Veteran’s psychiatric symptoms. Generally, a veteran is competent to report that which he perceives through his senses, including symptoms capable of observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran also presents as a credible historian, as his testimony is well-documented throughout the record and consistent with the nature of his service. His statements are further corroborated by additional evidence, including SPRs which confirm his in-service specialty as an Aerospace Ground Equipment Repairman Technician and his service in Thailand, and a July 2017 statement from his wife which indicates that his symptoms were present upon his discharge from service. The Veteran’s STRs do not reference an in-service psychiatric disorder or the treatment thereof. However, in a March 2017 lay statement, the Veteran indicated that he did not report his symptoms during service due to fear of losing his access to nuclear weapons as required by his job. Upon consideration of the above and in offering the Veteran the benefit of the doubt, the Board thus concludes that the second element of service connection—an in-service illness or event—has been met. As to the third and final element of service connection—a causal link—the August 2017 private examiner opined that it is at least as likely as not that the Veteran’s psychiatric condition is related to his military service. In doing so, the examiner documented evidence of “several and repeated” events from active duty that were “sufficiently stressful” to manifest the Veteran’s symptoms; of the in-service onset of the Veteran’s symptoms; and of the Veteran’s in-service fear of acknowledging his symptoms and soliciting treatment at that time. Upon review of this evidence, the examiner concluded that the Veteran’s service records documented behaviors consistent with two of the most common prodromal symptoms of bipolar disorder, including irritability/aggressiveness and impaired social functioning. The examiner additionally cited to the Diagnostic and Statistical Manual of Mental Disorders (DSM) and several academic studies in support of his conclusion that the record “consistently show[s] that the veteran experienced symptoms of depression during service.” Significant probative value is afforded to this opinion, which is based upon a detailed review of the evidence against general medical practices, and consideration of the nature and onset of the Veteran’s symptomatology. There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing his nexus opinion. Moreover, he has the requisite medical expertise to render a medical opinion regarding the etiology of the psychiatric disorder and had sufficient facts and data on which to base the conclusion. The preponderance of evidence is for the claim and the appeal is granted. Congestive Heart Failure The Veteran was diagnosed with congestive heart failure and supraventricular arrhythmia at a October 2017 VA examination. These diagnoses are additionally present throughout private treatment records. As such, the first element of service connection has been met. However, the evidence is in conflict as to an etiological link between these heart disorders and the Veteran’s service-connected diabetes mellitus with hypertension. In this respect, a July 2017 private physician opined that the Veteran’s heart disorders were secondary to his service-connected disabilities. In the accompanying narrative report, she indicated that systemic hypertension causes left ventricular hypertrophy by increasing the “afterload” on the heart, which is described as the pressure that the heart chambers must generate to eject blood. As such, this is a consequence of the aortic pressure, which must be greater than the systemic pressure to open the aortic valve. Congestive heart failure occurs when the overstressed myocardium cannot pump blood against the pressure, and fluid builds up in either the periphery or the lungs. In contrast, an October 2017 VA examiner opined that the Veteran’s heart disorders were less likely as not due to or aggravated by his diabetes mellitus. Here, the examiner noted that the heart conditions onset several years ago, before the Veteran’s diabetes was diagnosed. However, diabetes in and of itself does not usually lead to the diagnosed heart conditions. These conditions are intrinsic heart problems due to pump failure and myocardial conduction defects. In this specific case, both conditions also appear to have been stabilized due to the use of various medications. As such, the Veteran no longer experienced atrial fibrillation, and chest x-rays did not indicate current congestive heart failure. Upon comparison of the above, greater probative value is afforded to the July 2017 private opinion. Although both examiners provided definitive nexus opinions as supported by detailed rationales, the October 2017 examiner’s opinion is based largely on the onset of the Veteran’s non- and service-connected disorders. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). As such, the VA examiner does not assess whether the diagnosed heart disorders are aggravated by his diabetes with hypertension, as clearly discussed by the private examiner. Moreover, the VA examiner’s opinion is limited to a discussion of the Veteran’s diabetes, without consideration for his related hypertension and any impact thereof. Therefore, reasonable doubt is resolved in favor of the Veteran and entitlement to service connection for congestive heart failure is hereby granted. Abdominal Disorder Next the Veteran is seeking service connection for an abdominal disorder. In this respect, a February 2015 VA problem list denotes a diagnostic history of chronic constipation. This notation is sufficient to satisfy the first element of service connection. However, the evidence does not establish that this condition had its onset during service. In this respect, the Veteran has offered varying testimony regarding the onset of his chronic constipation; for example, a March 2017 lay statement indicates that the condition has “gone on for years,” but also that it “started in service.” However, STRs are entirely silent for reports of this condition or the treatment thereof, and the Veteran’s December 1973 exit examination reports a normal abdominal clinical evaluation. Instead, VA treatment records first note a history of chronic constipation in February 2015, more than four decades following his exit from service. Briefly, the Board acknowledges a June 1972 STR reporting abdominal pain of an undetermined etiology. However, on a December 1973 Report of Medical History, the Veteran indicated that his doctor attributed this pain to a prostate problem. The Veteran’s STRs indicate a history of in-service prostate problems, and he is currently service-connected for chronic prostatitis. Thus, the Board concludes that the limited June 1972 pain was attributable to a prostate condition for which the Veteran is already in receipt of VA benefits. As the second element (in-service incurrence) is not demonstrated with respect to an abdominal disorder, there is no basis to grant the claim and further inquiry into the nexus requirement is not required. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Accordingly, the appeal is denied. Cancerous Growth As above, a February 2015 VA problem list includes precancerous skin lesions, such that a current disability has been found. Here, the Veteran contends that his lesions are causally related to in-service exposure to herbicide agents. Such exposure was previously conceded in a September 2017 decision, and the Board finds no cause to disturb this finding at this time. Thus, the second element of service connection has been met. Such a finding triggers an analysis into the application of presumptive service connection to this appeal. To that end, if a veteran was exposed to herbicide agents during service, certain diseases are presumed to have been incurred in-service if they manifest to a compensable degree within specified periods, and even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§3.307(a)(6), 3.309(e). However, precancerous lesions are not among those diseases presumptively associated with herbicide exposure, such that service connection cannot be established on this basis. Nonetheless, the Veteran is not precluded from establishing entitlement to service connection on a direct basis. See, e.g., Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994) (holding that regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, a claimant is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure); McCartt v. West, 12 Vet. App. 164, 167 (1999). To the extent that the Veteran asserts a medical nexus between his precancerous lesions and his in-service herbicide exposure, no medical provider has ever established such a connection. Thus, the only evidence offered in support of the appeal is the Veteran’s own lay testimony alleging a nexus in this case. However, he lacks the training and expertise to offer a competent opinion regarding the etiology of his lesions due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Thus, in the total absence of competent medical evidence indicating a nexus in this case, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable. The appeal is hereby denied. (Continued on next page) Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel