Citation Nr: 18145396 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-34 143 DATE: October 30, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus and to that extent only, the claim is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for depression is granted. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction is remanded Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A November 2008 final rating decision denied service connection for diabetes. Evidence added to the record since the final November 2008 decision is new and material, as it is not cumulative or redundant of evidence of record at the time of the prior decision, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes. 2. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD. 3. It is at least as likely as not that the Veteran’s depression arose during active service, or as a result of events during service. 4. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection service connection for depression have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(f), 4.130. 4. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to February 1978. 1. Weather new and material evidence has been received in order to reopen a claim for entitlement to service connection for diabetes mellitus type II Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. 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 (1992). Regarding the claim for service connection for diabetes, a November 2008 rating decision denied service connection, based on a lack of evidence of any relationship between claimed diabetes and active service. The Veteran was notified of the decision and of his appellate rights. He did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156(b). Nor have any relevant, official service department records been received since that final decision. 38 C.F.R. § 3.156(c). Accordingly, the 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2010, the Veteran filed a claim to reopen the previously denied claim for service connection for diabetes. A September 2011 rating decision denied reopening the claim, finding that no new or material evidence was submitted with regard to any unestablished facts not already of record relating to the etiology of the claimed condition. Evidence submitted or acquired after the previous denials of service connection includes post-service VA medical records and lay statements. The Board finds that a review of all of the evidence of record, to specifically include those that were submitted or acquired after the most recent denial of service connection does show evidence that can be considered both new and material, so as to warrant reopening the claim. The Board notes that for a previously and finally denied claim to be reopened, the pending evidence meet both requirements, meaning it cannot be redundant or cumulative, and must at least tend to speak to a fact of issue that was previously unestablished. 38 C.F.R. § 3.156(a). Here, the Board finds that the newly acquired evidence of record, to include contemporaneous VA medical records and statements from the Veteran as both new, as it was not a part of the record prior to the previous decision, and material, as it substantiates, or provide evidence that tends to substantiate a previously undetermined fact. Here, the Board notes that the Veteran’s lay statements and claims are particularly relevant. The Veteran asserts that his diabetes not only arose during his active service, but also has been ongoing since service. The Veteran noted not only that his service medical records, to include his separation examination contained evidence of elevated glucose in his urine, but also explicitly noted dates and locations of the VA facility where he received treatment for diabetes directly after service until the 1980s. Specifically, in a report of contact made in March 2011, the Veteran noted explicitly that he received treatment for diabetes in the 1970s through 1985 from the ‘North Foster Drive’ VAMC in Baton Rouge, Louisiana, by a Dr. Dioubate, and that that center was potentially moved to Essen Park. The Board, acknowledging the low threshold for reopening a claim, finds those specific claims to be new and material in showing a plausible nexus for between diabetes and service; and as therefore, the claim must be reopened. In reopening the claim, the Board is cognizant of the fact that in the Veteran’s pervious claim, which was finally denied in November 2008, was based on a claim that his diabetes arose during service. However, a close review of that claim, in comparison to the newly provided information to his post-service treatment, and in-service urine glucose levels, show that specific information is not only new, but also relates to an unestablished fact necessary to substantiate the claim. Consequently, the Board finds the lay statements and additional information provided by the Veteran since his last denial, is considered new or material as to warrant reopening the claim for service connection. Therefore, the Board finds that the application to reopen the claim must be granted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree within one year after separation from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) The Veteran claims that he currently suffers from PTSD, due to his traumatic experience in combat during his active duty, to specifically include his deployment in Korea. The Board, however, finds that, while there is evidence of some psychiatric disabilities, to include depression, which is also discussed herein, the evidence of record shows that the Veteran currently has no diagnose for PTSD. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current disability of PTSD, or has had the claimed disability during the claims period, the claim for service connection must be denied. The Board notes that, generally, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, of the American Psychiatric Association. 38 C.F.R. §§ 3.304(f), 4.125(a). Therefore, threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the evidence of record shows no evidence of a diagnosis, under the required diagnostic guidelines, of PTSD during any period of the claim. An analysis of the service medical records, service personnel records, and post-service medical records show no diagnosis for PTSD. During VA mental health evaluations and sessions, medical professionals have noted no diagnosis or positive screenings for PTSD. Additionally, the Veteran has not submitted any competent private medical evidence that shows a diagnosis for PTSD. VA provided the Veteran a VA physiatric examination in November 2010 to assess the full nature and etiology of any psychiatric disability. During the examination, the VA examiner conducted an in-person interview, and a comprehensive review of the Veteran’s medical history. Ultimately, the examiner found that the Veteran’s condition did not fulfill the criteria for a diagnosis of PTSD, and instead that he was diagnosed with polysubstance abuse and major depressive disorder. The Board also notes the medical opinions provided by both a VA doctor and a private psychiatrist concluded that a diagnosis of PTSD was not warranted. Both opinions were provided by the Veteran, and both examiner noted a thorough review of the Veteran’s medical history, and full diagnostic examination of the Veteran’s psychiatric condition. While both diagnosed the Veteran with depression, neither examiner noted fulfillment of the criteria for a diagnosis of PTSD. The Board acknowledges that the Veteran has claimed that he has PTSD, which he has stated is manifested by sadness, depression, anger, and even sometime suicidal thoughts. The Board also acknowledges that the Veteran has submitted statements from his family and friends with regards to a changed psychological state and relative attitude towards life after his return from active service. However, the Board finds that the Veteran, and his friends and family, as lay persons, are not competent to provide a diagnosis for such a complex disability dealing with psychological issues, much less determining the etiology of any such disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does not show that the Veteran or others providing statements have the training to diagnose a mental disorder or provide an etiology opinion. The Board notes that, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation); Layno v. Brown, 6 Vet. App. 465 (1994). Here, competent evidence concerning the nature of the Veteran’s psychiatric disabilities has been provided by a medical professional who has examined him, and the underlying medical history of his condition, and found that the Veteran’s condition does not fulfill the criteria of PTSD. The Board finds that medical evidence to be most probative in determining whether there is any current disability, and therefore, as such findings have been negative for a diagnosis for PTSD, the claim must be denied. In the absence of competent evidence of medical findings of PTSD, the threshold requirement for substantiating the claim for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the Board finds that the preponderance of the evidence is against a finding of any current diagnosis for PTSD, and the claim for service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a psychiatric disability, to include depression The Veteran asserts that he has depression, as a result of events of active service. The Board finds that a review of the competent medical evidence of record, to include a VA psychiatric examination, two private psychiatric opinions, and post-service medical records, shows that the Veteran’s diagnosed depression is etiologically related to the Veteran’s active service. Therefore, the Board the finds that the Veteran’s claim for service connection for depression must be granted. The Board notes that of record is evidence of not only diagnoses of depression, but also multiple positive etiology opinions with regard depression and the Veteran’s service. Specifically, a November 2010 VA psychiatric found that while the Veteran did not meet the criteria for an Axis I diagnosis of PTSD, that the Veteran did have depression. The VA examiner found explicitly that depression, to include his polysubstance abuse, was the direct result of active service. This conclusion was further corroborated by two separate private opinion letters submitted by the Veteran, dated October 2011 and August 2016. In the October 2011 letter, one of the Veteran’s treating physicians, a VA clinical psychologist, diagnosed major depressive disorder with polysubstance abuse. The VA examiner, noted that through review of the Veteran’s medical and treatment history, that the Veteran’s depressive disorder was a direct result of active service. In an August 2016 opinion letter, a private examiner, after an exhaustive review of the Veteran’s medical history and in-person interview, made an Axis I diagnosis of depressive disorder, and provided an expert opinion that depressive disorder was directly related to active service. In both reports, the examiner noted that the Veteran’s depression, along with his substance abuse, arose during service, and had persisted until the present. The Board finds that the two positive medical opinions, and positive VA examination, is further corroborated by lay submission from family and friends, describing a changer person after returning from service. The Board finds that a review of the reports and opinions to be exceptionally probative and adequate. Therefore, considering the evidence as a whole, the Board finds that the Veteran’s diagnosed depression has been shown to be the result of his active service. Consequently, the Board finds that service connection for depression is warranted and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to an increased rating for tinnitus is remanded. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. Separate rating codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87 (2015). Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.87 (2015); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further finds that referral for consideration of an extraschedular rating is not warranted as the evidence regarding the Veteran’s tinnitus does not show an exceptional disability picture that would make the available schedular rating inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not provided any evidence that his tinnitus is of such a degree that the 10 percent schedular disability rating is insufficient. The evidence does not show frequent hospitalization or marked interference with employment as a result of tinnitus. Therefore, the Board finds that the schedular rating is adequate and no referral is required for extraschedular consideration. 38 C.F.R. § 3.321(b). REASONS FOR REMAND 1. Entitlement to service connection for diabetes is remanded. The Board notes that the Veteran has not been provided a VA examination with regard to the claim for service connection for diabetes. During the pendency of his claim, the Veteran has noted that his diabetes arose during active service, and that he received treatment directly after service, and until the present. The Board notes that while medical records during the period directly following separation are not of record, a close review of the Veteran’s separation examination in the service medical records shows elevated glucose levels in the urine when he exited active service. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds that the Veteran’s claim of having diabetes upon exiting service is supported, to a degree, by the evidence in the Veteran’s service medical records showing elevated glucose levels. While that evidence is not considered dispositive of the claim, that evidence is sufficient to trigger VA’s duty to provide the Veteran a VA examination to assess the nature and etiology of diabetes. The Board finds that the Veteran’s claim for diabetes require a medical examination. 2. Entitlement to service connection for erectile dysfunction is remanded. With regard to the claim for erectile dysfunction, as the claim for service connection for diabetes is being remanded for additional development, the outcome of that claim could be a direct bearing on the Veteran’s claim for erectile dysfunction, as those conditions are often medically related. Therefore, the Board finds that the claim for service connection for erectile dysfunction is considered inextricably intertwined with any analysis of the Veteran’s claim for diabetes. Accordingly, since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider this derivative claim prior to the determination of that other claim. Bernard v. Brown, 4 Vet. App. 384 (1993); Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to an increased rating for bilateral hearing is remanded. With regard to the claim for increased rating for bilateral hearing loss, the Veteran was provided the most recent VA examination in April 2014, more than four and a half years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the Veteran’s current level of hearing disability or tinnitus. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran’s claim for an increased rating for hi disabilities. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians that are not already of record. 3. Then, schedule the Veteran for a VA examination for diabetes. The examiner must review the claims file and should note that review in the report. The examiner is specifically asked to report on the nature and etiology of the Veteran’s diagnosed diabetes mellitus, and should opine whether it is as likely as not (50 percent probability or more) that diabetes mellitus is related to service or any incident of service, to include any elevated glucose readings in service. The examiner is specifically asked to address the Veteran’s contention that diabetes mellitus arose during service, and address the evidence of elevated glucose level during the separation examination and opine whether that represented diabetes. The examiner should also opine whether diabetes mellitus manifested within one year following separation from service. A complete rationale for any opinion expressed should be included in the report. 4. Then, schedule the Veteran for a VA examination for erectile dysfunction. The examiner must review the claims file and should note that review in the report. The examiner is specifically asked to report on the nature and etiology of the Veteran’s diagnosed erectile dysfunction, and should opine whether it is as likely as not (50 percent probability or more) that erectile dysfunction is related to service or any incident of service. Additionally, the examiner must also provide an opinion and rationale with regards to whether, it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused by any service-connected disabilities. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that erectile dysfunction was been aggravated (permanently worsened beyond the natural progress of the disorder) by any service-connected disabilities. 5. Then, schedule the Veteran for a VA audiology examination of service-connected bilateral hearing loss. The examiner must review the claims file and should note that review in the report. The examiner is asked to report on the current nature and severity of hearing loss and to provide an audiogram and conduct Maryland CNC speech recognition testing. A complete rationale for any opinion expressed should be included in the examination report. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel