Citation Nr: 18143937 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-08 605 DATE: October 22, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD, has been received and the claim is reopened; to this limited extent, the appeal is granted. Entitlement to service connection for sinusitis is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for cancer, to include right carotid body tumor, is remanded. Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD, is remanded. FINDINGS OF FACT 1. An April 2003 rating decision denied entitlement to service connection for an acquired psychiatric disorder. Evidence received subsequent to April 2003 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD. 2. The Veteran’s sinusitis is related to service. CONCLUSIONS OF LAW 1. Evidence received since the April 2003 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1982 to January 1993. In June 2018, a video hearing was held before the undersigned. A transcript of that hearing is of record. The Board will not at this time assume jurisdiction over claims of entitlement to an increased rating for a right wrist disorder or a left wrist disorder. These claims were listed in the January 2015 statement of the case (SOC) but were not appealed by the Veteran in his March 2015 VA Form 9. The Veteran has filed separate claims of entitlement to service connection for neuropsychiatric disorder (also claimed as personality disorder, depression, and bipolar II) and entitlement to service connection for PTSD. Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim and reported symptoms and all other information of record, the Board finds that it is more appropriate to characterize his mental health claims broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will also not at this time assume jurisdiction over a claim of entitlement to an increased rating for a right elbow disorder. This claim was listed in the January 2015 SOC but was not appealed by the Veteran in his March 2015 VA Form 9. In February 2018, the Veteran filed a separate increased rating claim for a right elbow disorder, which the RO denied in a May 2018 decision. A notice of disagreement (NOD) has not been filed and the pendency for filing an NOD has not expired. The Board will also not assume jurisdiction over a claim of entitlement to an increased rating for a right knee disorder. The RO granted service connection for this disorder in January 2015, after which an NOD was never filed. In February 2018, the Veteran filed a separate increased rating claim for a right knee disorder, which the RO denied in a May 2018 decision. An NOD has not been filed and the pendency for filing an NOD has not expired. New and Material Evidence Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD In April 2003, the RO denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Part of the reason for this denial was the lack of evidence of a current diagnosis. Since that time, the RO has conducted a December 2012 VA mental disorders examination, which contains a diagnosis of “Bipolar II Disorder, Current Episode Depressed.” This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 2. Entitlement to service connection for sinusitis These elements are satisfied for the Veteran’s sinusitis claim. The first element is satisfied, in that a June 2014 VA examination contains a diagnosis of sinusitis. The second element is also satisfied, in that the Veteran was diagnosed with sinusitis during service. The nexus element is also satisfied. A June 2014 VA medical opinion explains that the Veteran’s condition “represents a multifactorial inflammatory disorder, rather than simply a persistent bacterial infection.” This conclusion is based on the fact that the Veteran’s disorder has not been cured with antibiotic treatment. Based on the nature of the Veteran’s current sinusitis disorder and his in-service diagnosis, the examiner concludes that the Veteran’s sinusitis is at least as likely as not related to service. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The Board notes that a December 2014 VA medical examination and opinion conclude that there is insufficient evidence of a current diagnosis of sinusitis. However, the December 2014 VA medical opinion is based in part on the premise that there is no evidence of prior diagnosis of sinusitis in the Veteran’s VA medical records. This premise is incorrect, in that the Veteran was treated for sinusitis in at least 2008. An opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because the preponderance evidence of record supports the existence of a current diagnosis and the other two elements of service connection are satisfied, the Veteran is entitled to prevail with respect to his claim. REASONS FOR REMAND A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 1. Entitlement to service connection for sleep apnea is remanded. These elements are satisfied with regard to the claim of entitlement to service connection for sleep apnea. Regarding the first element, a November 2013 VA medical record lists “Obstructive Sleep Apnea” as one of the Veteran’s “Active Problems.” Regarding the second element, during the June 2018 hearing, the Veteran states that he began to have sleep difficulties during service. Regarding the third and fourth elements, there is an indication that the Veteran’s current sleep apnea could be related to in-service sleeping problems, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 2. Entitlement to service connection for cancer, to include right carotid body tumor, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for cancer, to include right carotid body tumor. Regarding the first element, a September 2013 VA medical record (received 5/30/18, page 8 of 32) indicates treatment for “right carotid body tumor.” Regarding the second element, during his June 2018 hearing, the Veteran argues that this disorder is the result of in-service exposure to asbestos and other chemicals. Regarding the third and fourth elements, there is an indication that a tumor could be related to chemical exposure, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 3. Entitlement to service connection for a left elbow disorder is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for a left elbow disorder. Regarding the first element, at his June 2018 hearing, the Veteran indicated that he has experienced bilateral elbow pain since service. Regarding the second element, at his June 2018 hearing, the Veteran argued that his left elbow pain is the result of performing repetitive overhead motions during service. Regarding the third and fourth elements, there is an indication that left elbow pain could be related to performing repetitive overhead motions during service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 4. Entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depression, bipolar disorder, and PTSD, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and PTSD. Regarding the first element, a December 2014 VA mental disorders examination contains a diagnosis of bipolar disorder, although in a November 2014 VA addendum opinion an examiner expresses skepticism regarding this diagnosis. Regarding the second element, during the June 2018 hearing, the Veteran stated that an in-service stressor for PTSD was the U.S.S. Kennedy being attacked while he was serving on it. The Veteran was also treated for psychological problems during service in September 1987. Regarding the third and fourth elements, there is an indication that a current psychiatric disorder could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. Regarding the Veteran’s psych claim, the Board notes that the Veteran’s September 1987 service treatment record indicates that the Veteran’s personality disorder pre-existed service. However, while a January 1982 Report of Medical History (received 4/17/13, pages 20–22 of 131) indicates “[d]epression or excessive worry,” it does not contain a diagnosis for an acquired psychiatric disorder or a personality disorder. The Board finds that it is not clear and unmistakable that an acquired psychiatric disorder preexisted service. The June 2014 VA addendum opinion supports this finding. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from May 2018 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from May 2018 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Based on the Veteran’s June 2018 hearing testimony regarding in-service stressors, the RO should take steps to verify the claimed in-service stressors, to include contacting all such entities deemed appropriate to provide any available information which might corroborate the Veteran’s claimed stressors. Such stressors include serving on the U.S.S. Kennedy when it was bombed and seeing bodies on deck. 3. After completing steps 1–2 above, provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder, including but not limited to depression, bipolar disorder, and PTSD. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions. (a.) Identify all acquired psychiatric disorders currently present. (b.) Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder, including depression, bipolar disorder, and PTSD, had its onset in service or was otherwise caused by an in-service disease or injury. (c.) Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran’s discharge from his period of active service. (d.) If a diagnosis of PTSD is warranted, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that PTSD is due to exposure to an actual confirmed stressor or the fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. In rendering these opinions, the examiner should consider the December 2012 VA medical examination and opinion, the June 2014 VA addendum opinion, and the November 2014 VA addendum opinion. The examiner should also consider the September 1987 in-service psychiatric records (received 4/17/13, pages 12–16 and 63 of 131). The examiner should also consider the Veteran’s June 2018 hearing testimony. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed sleep apnea. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed sleep apnea. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed sleep apnea was incurred in the Veteran’s service, including but not limited to as a result of exposure to asbestos, inhaling dust in shipyards, or in-service sleeping problems. In rendering these opinions, the examiner should consider the Veteran’s June 2018 hearing testimony, including his discussion of inhaling dust in shipyards and exposure to asbestos. The examiner should also address service treatment records addressing asbestos monitoring, including those dated November 1986 (received 4/17/13, pages 34, 38 of 131) and March 1987 (received 4/17/13, page 68 of 131). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 5. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed cancer, to include right carotid body tumor. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed cancer, to include right carotid body tumor. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed cancer, to include right carotid body tumor, was incurred in the Veteran’s service, including but not limited to as a result of exposure to asbestos or inhaling dust in shipyards. In rendering these opinions, the examiner should consider the Veteran’s June 2018 hearing testimony, including exposure to asbestos. The examiner should also address service treatment records addressing asbestos monitoring, including those dated November 1986 (received 4/17/13, pages 34, 38 of 131) and March 1987 (received 4/17/13, page 68 of 131). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 6. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed left elbow disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed left elbow disorder. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed left elbow disorder was incurred in the Veteran’s service, including but not limited to as a result of performing repetitive overhead motions. (c.) If the Veteran does not have a current diagnosis for left elbow disorder, is the Veteran’s left elbow condition characterized by pain? If yes, offer the following opinions: (i) does the Veteran’s left elbow pain reach the level of functional impairment of earning capacity, and if so (ii) is it at least as likely as not (a 50 percent or better probability) that any left elbow pain that reaches the level of functional impairment of earning capacity was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider the Veteran’s June 2018 hearing testimony regarding performing repetitive overhead motions during service. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel