Citation Nr: 18143671 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-28 408 DATE: October 23, 2018 ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder, previously characterized as anxiety neurosis, is reopened; the appeal is granted to this extent only. Service connection for tinnitus is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for hypertension is denied. Service connection for prostatitis is denied. REMANDED Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In a final decision issued in March 2010, the Agency of Original Jurisdiction (AOJ) determined that new and material evidence sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, characterized as anxiety neurosis, had not been received. 2. Evidence added to the record since the final March 2010 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. 3. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of discharge from active duty. 4. Diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of discharge from active duty. 5. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of discharge from active duty. 6. Prostatitis is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The March 2010 rating decision that determined that new and material evidence sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, characterized as anxiety neurosis, had not been received, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for prostatitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from July 1966 and December 1966, and on active duty from May 1968 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in February 2015 and July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a September 2013 rating decision denied the Veteran’s claims for service connection for an acquired psychiatric disorder (to include posttraumatic stress disorder (PTSD) and anxiety neurosis), a head injury, blurred vision, diabetes, and prostatitis; however, such rating decision was not appealable as such was a provisional decision and the Veteran was not advised of his appellate rights. Nonetheless, he indicated disagreement with such decision later that month and the AOJ issued a statement of the case in July 2015, to which the Veteran entered a substantive appeal in August 2015. However, the AOJ simultaneously recognized the fact that the September 2013 rating decision was not appealable as it issued another rating decision in July 2015. However, as the AOJ has taken subsequent actions to indicate to the Veteran that such claims are on appeal, to include issuing a December 2017 supplemental statement of the case and certifying the claims to the Board, the Board accepts jurisdiction over such claims. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Finally, the Board observes that the Veteran was previously represented by J. Michael Woods, an attorney; however, Mr. Woods withdrew from representation in November 2016 prior to certification of the appeal to the Board. Therefore, the Veteran is unrepresented in the current matter. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, previously characterized as anxiety neurosis. By way of background, the Veteran’s original claim for service connection for a nervous disorder, characterized as anxiety neurosis, was originally denied in a November 1974 rating decision. At such time, the AOJ noted that the evidence of record, to include the Veteran’s service treatment records (STRs) and post-service hospitalization records, was negative for any complaints, treatment, or findings of a nervous disorder during his active duty service and the first evidence indicating the presence of any psychiatric condition was a February 1974 treatment record showing treatment for psychoneurosis. Thus, the AOJ found that there was no evidence that a nervous disorder was incurred in or aggravated by service. Later that month, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. Further, no additional evidence was received or constructively of record within one year of the issuance of such decision, and no relevant service department records have since been associated with the record. Therefore, the November 1974 rating decision is final. The Veteran subsequently submitted an application to reopen such claim in November 2009. In a March 2010 rating decision, the AOJ considered the Veteran’s STRs and post-service treatment records. In this regard, the AOJ determined that the evidence received since the November 1974 denial, which included VA treatment records, did not show treatment or a diagnosis referable to a current psychological disorder or reflect that he was diagnosed with such disorder during his military service or within one year of his discharge from service. Thus, the AOJ determined that new and material evidence sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, characterized as anxiety neurosis, had not been received. In March 2010, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. Further, no additional evidence was received or constructively of record within one year of the issuance of such decision, and no relevant service department records have since been associated with the record. Therefore, the March 2010 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final March 2010 rating decision includes a March 2011 statement in support of the Veteran’s claim for service connection for PTSD, in which he stated that he received a head injury during his ACDUTRA service during tower week training that caused him to have anxiety attacks, loss of memory, and blurred vision, and was hospitalized overseas. Additionally, in a June 2011 letter, J.M. stated that he joined the military with the Veteran and they both completed basic training in September 1966 and were sent to Fort Benning, Georgia for parachute jump school. J.M. also stated that he witnessed the Veteran fall several feet from a rope, which caused him to bump his head and have a concussion. Consequently, as the newly received evidence addresses the potential etiology of the Veteran’s acquired psychiatric disorder, the element found to be lacking in the prior denial, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the March 2010 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claim for service connection for an acquired psychiatric disorder is reopened. Service Connection A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, arthritis, hypertension, and diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this regard, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that, as will be discussed in the Remand below, there may be missing STRs pertaining to the Veteran’s aforementioned head injury; however, he has not alleged nor does the record reflect that his tinnitus, diabetes, hypertension, and/or prostatitis are related to such incident. Therefore, such potential records are irrelevant to the claims adjudicated herein and, consequently, there is no prejudice to the Veteran in proceeding with a decision on such matters at this time. 2. Entitlement to service connection for tinnitus. The Veteran contends that he has tinnitus that is related to his military service. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, such diagnosis was confirmed at the Veteran’s November 2017 VA examination. However, upon review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim. In this regard, the Veteran’s STRs do not reveal any complaints, treatment, or diagnoses referable to tinnitus during service. Additionally, at his November 2017 VA examination, the Veteran reported that he first noticed tinnitus 12 years previously. In December 2017, the VA examiner opined that the Veteran’s tinnitus was less likely as not due to noise exposure in active duty. In support thereof, the examiner explained that the lack of adequate frequency specific audiological tests during the Veteran’s time in service made it impossible to either rule out or confirm damage to the auditory system over time as evidenced by permanent clinically significant increases in thresholds. The examiner also discussed an Institute of Medicine (IOM) report, which acknowledged that tinnitus could be associated to noise exposure, but that “it is not always possible to identify a precipitating cause of tinnitus.” However, the examiner further noted that the Veteran’s military occupation was a supplyman, which had a low probability of exposure to hazardous noise. Thus, the Board places great weight on the December 2017 VA examiner’s opinion as such considered all of the pertinent evidence of record and provided a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Id. The Board has also considered the Veteran’s statements in support of his claim. While he is competent to report his in-service noise exposure, as well as the ringing in his ears, the Board finds he is not competent to offer an opinion as to whether his tinnitus is related to any instance of his service since he does not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorder, to include whether such is related to his in-service exposure to noise, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology his bilateral hearing loss, and, consequently, his opinion on such matter is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, as previously noted, the Veteran has not placed the onset of his tinnitus during service. Rather, he reported that he first noticed his tinnitus 12 years prior to the November 2017 VA examination. Furthermore, the evidence of record does not indicate that tinnitus manifested to a compensable degree within a year of separation or has been chronic and continuous since separation. Specifically, as noted above, the Veteran reported that he first noticed his tinnitus 12 years prior to the November 2017 VA examination, which was more than one year from his discharge from service. Consequently, presumptive service connection, to include on the basis of a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Therefore, the Board finds that the Veteran’s tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of discharge from active duty. Therefore, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for diabetes mellitus, type II. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for prostatitis. The Veteran is seeking service connection for diabetes, hypertension, and prostatitis. However, upon review of the evidence, the Board finds that the preponderance of the evidence is against such claims. In this regard, the Veteran’s STRs do not reveal any complaints, treatment, or diagnoses referable to diabetes, hypertension, or prostatitis. Specifically, his October 1969 separation examination reflected that all systems were normal upon evaluation, his blood pressure was 118/76, and urinalysis was negative for albumin and sugar. Further, in his contemporaneous report of medical history, the Veteran denied that he had or was then having high or low blood pressure, sugar or albumin in urine, or tumor, growth, cyst, or cancer. Moreover, while the Veteran’s post-service treatment records indicate that he has a current diagnosis pertaining to diabetes, hypertension, and prostatitis, such do not show, or suggest, that such disorders are related to his military service, or demonstrate that his diabetes and/or hypertension manifested to a compensable degree within a year of his separation, or were chronic and continuous since such time. See June 2013 and August 2013 VA treatment records. Furthermore, other than an November 2012 statement where the Veteran reported that he is still suffering from many illnesses since discharge, and is diabetic and has prostate complications, for which he receives treatment, he has not provided any other information as to how his diabetes, hypertension, and prostatitis are related to his military service. Additionally, the Board notes that an examination and/or opinion have not been obtained in regard to the Veteran’s claims for service connection for diabetes, hypertension, and/or prostatitis. However, VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that the Veteran’s diabetes, hypertension, and/or prostatitis are not shown to be causally or etiologically related to any disease, injury, or incident during service, and diabetes and/or hypertension did not manifest within one year of discharge from active duty. Therefore, service connection for such disorders are not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection for diabetes, hypertension, and prostatitis. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 6. Entitlement to service connection for residuals of a head injury, to include headaches. 7. Entitlement to service connection for a bilateral eye disorder. 8. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that, while stationed at Fort Benning, Georgia, from June 1966 to September 1966, he injured his head and subsequently experienced anxiety attacks, for which he was hospitalized in Germany. He also stated that he was having memory loss and blurred vision, and was then transferred from Germany to Walter Reed Hospital in Washington, D.C., and was later transferred to a military hospital in Augusta, Georgia. Additionally, J.M., who joined the military with the Veteran, stated that they were sent to Fort Benning, Georgia, for parachute jump school within days after completing basic training in September 1966, and that he witnessed the Veteran fall several feet from a rope, which caused the Veteran to bump his head and have a concussion. See June 2011 letter. As an initial matter, the Board finds that a remand is necessary to obtain potentially outstanding service records. In this regard, the AOJ previously attempted to obtain records from Fort Gordon, Georgia, and Fort Benning, Georgia, for the Veteran’s period of active duty service; however, the record does not indicate that it attempted to obtain such records for the Veteran’s ACDUTRA service. Additionally, the AOJ attempted to obtain records from Walter Reed Hospital, but only for the period from January 1969 to December 1969. Furthermore, the Veteran’s service personnel records indicate that he was a patient at a military hospital in Landstuhl, Germany, and Frankfurt, Germany, in May 1969 and June 1969. Thus, attempts should be made to obtain such records. The Board also finds that a remand is necessary to obtain VA examinations to determine the nature and etiology of the Veteran’s residuals from a head injury, a bilateral eye disorder, and an acquired psychiatric disorder. In this regard, in a November 2012 statement, the Veteran noted that he continued to suffer from headaches. Additionally, a February 1974 VA treatment record noted that he was admitted with a history of having headaches. With regard to the Veteran’s bilateral eye disorder, his June 1966 examination, noted that he had a refractive error. His post-service treatment records also indicate that he may have a current bilateral eye disorder, including presbyopia, astigmatism, and cataracts. See May 2013 and June 2013 VA treatment records. Lastly, regarding the Veteran’s psychiatric disorder, the February 1974 treatment record noted that the Veteran had psychoneurosis; however, it is unclear if he has a current acquired psychiatric disorder related to his military service. Thus, the Board finds that a remand is warranted to obtain VA examinations that address such concerns. The matters are REMANDED for the following action: 1. Obtain any outstanding service records pertaining to the Veteran’s medical treatment at Fort Benning, Georgia, Fort Gordon, Georgia, Landstuhl, Germany, and Frankfurt, Germany, and Walter Reed Hospital from June 1966 to September 1966, and at Landstuhl, Germany, and Frankfurt, Germany, from May 1969 to June 1969 from any appropriate source. Such may include requesting clinical records, which are usually filed under the facility name rather than a service member’s name. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the record, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any headache disorder. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should respond to the following: (A) Please identify all of the Veteran’s currently diagnosed headache disorders. (B) For each diagnosed headache disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to the Veteran’s military service, to include his claimed 1966 head injury. The examiner is also advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s STRs are silent as to a headache disorder or a lack of medical records demonstrating a continuity of care. A rationale for any opinion offered should be provided. 3. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any bilateral eye disorder. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should respond to the following: (A) Please identify all of the Veteran’s currently diagnosed bilateral eye disorders, to include refractive error, astigmatism, cataracts, and presbyopia. (B) For each diagnosed refractive error, the examiner should opine whether such was subject to a superimposed disease or injury during service, to include his claimed 1966 head injury, that resulted in additional disability. If so, please identify the additional disability. (C) For each identified diagnosed bilateral eye disorder other than a refractive error, to include cataracts, astigmatism, and presbyopia, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s active duty service, to include his claimed 1966 head injury. A rationale for any opinion offered should be provided. 4. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should respond to the following: (A) Please identify all of the Veteran’s currently diagnosed acquired psychiatric disorders that meet the DSM-5 diagnostic criteria. (B) If PTSD is diagnosed, the examiner should indicate whether such is the result of an in-service stressor. The examiner should consult the record in order to determine whether the Veteran’s claimed stressor has been verified by the AOJ. Again, if the AOJ has not specifically documented that the Veteran’s stressor has been verified, he or she should assume that it has NOT been verified. The examiner is NOT asked to provide a speculative opinion on an unverified stressor. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to the Veteran’s military service, to include his claimed 1966 head injury. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s STRs are silent as to any acquired psychiatric disorder or a lack of medical records demonstrating a continuity of care. (Continued on the next page)   A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel