Citation Nr: 18145706 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-04 913 DATE: October 29, 2018 ORDER An effective date prior to September 13, 2012, for the grant of service connection for pseudofolliculitis barbae (PFB) is denied. An effective date prior to June 20, 2014, for the grant of service connection for tinnitus is denied. The application to reopen the claim of service connection for pes planus is denied. The application to reopen the claim of service connection for fibromyalgia is denied. The application to reopen the claim of service connection for shin splints is denied. The application to reopen the claim of service connection for an acquired psychiatric disorder is granted. Service connection for an acquired psychiatric disorder is granted. Service connection for sleep apnea is granted. Service connection for hypertension is denied. Service connection for degenerative arthritis is denied. REMANDED Service connection for a respiratory disorder, to include asthma. A compensable rating for PFB. FINDINGS OF FACT 1. The Veteran had active service from June 1982 to June 1985 and from October 1985 to August 1992. 2. The initial claim of entitlement to service connection for PFB was received by VA on September 13, 2012; there are no documents or communications of record dated prior to September 13, 2012, that constitute a claim of service connection for PFB. 3. The initial claim of entitlement to service connection for tinnitus was received by VA on June 20, 2014; there are no documents or communications of record dated prior to June 20, 2014, that constitute a claim of service connection for tinnitus. 4. In an unappealed January 2008 rating decision, the Regional Office (RO) denied an application to reopen claims for service connection for pes planus, fibromyalgia, and shin splints on the basis that no new and material evidence was submitted; the evidence submitted since January 2008, to the extent that it is new, is not material. 5. In an unappealed January 2008 rating decision, the RO denied service connection for an acquired psychiatric disorder, to include depression, on the basis that there was no evidence of a current diagnosis or in-service incurrence of depression; the evidence submitted since January 2008 relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder. 6. The Veteran’s acquired psychiatric disorder has been related to service. 7. Sleep apnea is aggravated by a service-connected acquired psychiatric disorder. 8. Hypertension was not shown in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and is not causally or etiologically related to service. 9. Degenerative arthritis is not shown. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 13, 2012, for the grant of service connection for PFB have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2017). 2. The criteria for an effective date prior to June 20, 2014, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2017). 3. The January 2008 rating decision, which denied service connection for pes planus, fibromyalgia, shin splints, and an acquired psychiatric disorder is final. 38 C.F.R. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence has not been received with respect to the claim of entitlement to service connection for pes planus and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. New and material evidence has not been received with respect to the claim of entitlement to service connection for fibromyalgia and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. New and material evidence has not been received with respect to the claim of entitlement to service connection for shin splints and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The evidence received since the January 2008 rating decision is new and material; the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). 8. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2017). 9. Resolving reasonable doubt in the Veteran’s favor, sleep apnea was aggravated by a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2017). 10. Hypertension was not incurred in service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.317 (2017). 11. Degenerative arthritis was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, service connection for an acquired psychiatric disorder was originally denied in September 2013 which, at the time, indicated that the scope of the disorder was an application to reopen a claim of service connection for depression. Review of the record reveals that he has been diagnosed with major depressive disorder (MDD), and an adjustment disorder with depressed mood. Accordingly, the Board has recharacterized the issue on appeal as an application to reopen a claim of service connection for an acquired psychiatric disability to better reflect the scope of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Earlier Effective Date Claims The effective date of an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application.” 38 U.S.C. § 5110(a). The effective date for increased rating shall be the earliest date of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for increased ratings shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, “date of receipt” means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). A claim is a “formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1(p). Currently, the Veteran is assigned effective dates of September 13, 2012, and June 20, 2014, for the grants of service connection for PFB and tinnitus. These dates correspond to the dates that VA received the VA 21-526b forms in which he formally set forth his initial claims of entitlement to service connection for those disabilities. As he separated from active service in August 1992 and submitted his claims over a year later, he is not entitled to an effective date within one year of his discharge from service. A review of the evidence shows that the Veteran was diagnosed with PFB while in service and in an August 2013 VA examination. The evidence further shows that he was diagnosed with tinnitus in a December 2014 VA examination. However, the record is otherwise silent for complaints of or treatment for PFB prior to September 2012 and for tinnitus prior to June 2014. Following a review of the relevant evidence of record, the evidence weighs against an effective date earlier than September 13, 2012, for the grant of service connection for PFB and an effective date earlier than June 20, 2014 for the grant of service connection for tinnitus. Significantly, no communication in the record may be reasonably construed as formal or informal claims for service connection for PFB and tinnitus until the Veteran’s September 2012 and June 2014 claims. Additionally, nothing in the record establishes that he first attempted to submit claims for service connection for PFB and tinnitus prior to his August 1992 separation from service. Finally, the medical evidence does not document a post-separation diagnosis of PFB until August 2013 and symptoms of tinnitus until December 2014. The effective date for the grant of a claim of service connection is the date of receipt of the claim or the date that entitlement arose, whichever is later. Moreover, without formal or informal claims for service connection prior to September 13, 2012 and June 20, 2014, earlier effective dates are not warranted. As such, the appeals are denied. Claims to Reopen Based on 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). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order 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). Pes Planus, Fibromyalgia, and Shin Splints The Veteran was initially denied service connection for pes planus, fibromyalgia, and shin splints in May 2006 on the basis that the evidence did not establish that pre-existing pes planus was permanently worsened as a result of service, that his fibromyalgia was the result of an in-service injury, and that there was no current diagnosis or evidence of chronic shin splints. He was again denied service connection for the disorders in January 2008. The evidence of record at the time of the January 2008 rating decision consisted of service treatment records (STRs), post-service medical treatment records, and a June 2005 lay statement submitted by the Veteran. The RO noted in January 2008 that he did not submit any evidence that to reopening the claims. He did not appeal that decision and the January 2008 rating decision became final. The evidence received since the January 2008 rating decision includes additional STRs and post-service medical treatment records. However, the STRs and medical treatment records are not material as they provide no new evidence that the Veteran’s pre-existing pes planus was permanently worsened as a result of service, that fibromyalgia originated during his active service, or that he was diagnosed with shin splints. The STRs and medical treatment records therefore fail to raise a reasonable possibility of substantiating the claims and do not support reopening. The evidence also includes June 2013 and July 2013 lay statements from family members describing how the Veteran experienced constant pain that shot through his body. The June 2013 and July 2013 lay statements are not material, as they fail to establish that his pes planus was consistently present since his separation from service, that fibromyalgia was the result of an in-service injury, or that he had a current diagnosis of shin splints. The buddy statements therefore fail to raise a reasonable possibility of substantiating the claims and do not support reopening. The evidence also includes an August 2013 VA examination in which the Veteran complained of generalized joint pain, including a “trick knee” that caused falls and a feeling like he had a thousand pins in his legs and feet. The examiner diagnosed right knee arthralgia and opined that it was less likely that it was related to in-service treatment. The examiner noted that the Veteran’s complaints of numbness and tingling were related to a separate condition and found that he did not have and never had shin splints. The August 2013 VA examination is not material as it fails to establish that his worsening pes planus was a result of his active service. Moreover, it neither reveals a relationship between fibromyalgia and military service nor diagnoses shin splints. This evidence also weighs against the claims and fails to establish a reasonable possibility of substantiating the claims. Based on the above, the medical evidence does not support the claims to reopen and the appeals are denied to this extent. Acquired Psychiatric Disorder The Veteran was initially denied service connection for an acquired psychiatric disorder, to include depression, in January 2008 based on a finding that there was no evidence of a current diagnosis or in-service incurrence of depression. The evidence of record at the time consisted of STRs, post-service medical treatment records, and a June 2005 lay statement submitted by the Veteran. The evidence received subsequent to the January 2008 rating decision includes additional STRs, additional post-service medical records diagnosing a mood disorder, adjustment disorder, and major depressive disorder, multiple buddy statements from family members documenting how the Veteran became increasingly isolative and angry with his family, had trouble sleeping, and had trouble sleeping and with his short-term memory, a June 2015 examination and associated private medical opinion opining that an acquired psychiatric disorder more likely than not began in service and continued uninterrupted to the present, and a February 2016 VA examination opining that an acquired psychiatric disability was at least as likely as not incurred in or caused by service. The evidence is new and material within the meaning of applicable law and regulations because it is probative of the issue. The June 2015 examination and private medical opinion and February 2016 VA examination assert that a relationship exists between the Veteran’s acquired psychiatric disorder and his active service. This evidence is new as it was not of record prior to the January 2008 rating decision. Moreover, the evidence is material as it relates to the unestablished element of a relationship between his current disability and his active service. Accordingly, the newly added evidence relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder. As such, the application is granted, the claim is reopened and will be addressed on the merits, and the appeal is granted to this extent Service Connection Claims 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 be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may 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). Acquired Psychiatric Disorder The Veteran has argued that he incurred his disability while serving in Southwest Asia during the Gulf War. Specifically, in a February 2016 VA examination, he stated that he witnessed body parts and exploded buses and was exposed to chemicals and smoke from burning oil wells, and discovered that a friend was killed in action. The Veteran’s DD-214 show that he served in Southwest Asia. A review of his STRs reflects that his psychiatric assessment was normal upon examination in his May 1985 and July 1992 separation examinations and reported in associated Reports of Medical History that he did not have and never had depression, excessive worry, or frequent trouble sleeping. However, his description of stressors including being informed of the death of a fellow servicemember in action, being exposed to chemicals and smoke from burning oil wells, and witnessing body parts and exploding buses is consistent with his service records showing service in Southwest Asia. Thus, it is reasonable to conclude an in-service incurrence. As to nexus, in a June 2015 examination and related private medical opinion, the clinician diagnosed MDD and opined that it more likely than not began in service, continued uninterrupted to the present, and was aggravated by his service connected tinnitus and PFB. The clinician explained that medical research found that active duty personnel became disillusioned with their personal and professional identities and had more mental health events than civilians as a result and that individuals with medical issues and MDD debilitation became disabled due to the holistic effect of medical and psychiatric disturbances (such as the Veteran’s service-connected tinnitus and PFB). Furthermore, in a February 2016 VA examination, the examiner diagnosed an adjustment disorder with depressed mood and opined that it was at least as likely as not that an adjustment disorder was incurred in or caused by service. The examiner noted multiple in-service stressors, including seeing body parts, exposure to chemicals and smoke from burning oil wells, witnessing a fellow servicemember having his ear blown off, and discovering that a friend in-service was killed in action. In sum, the medical evidence establishes that the Veteran current diagnoses are related to service. Accordingly, the evidence weighs in favor of the claim and there is no doubt to be otherwise resolved. As such, service connection for an acquired psychiatric disorder is warranted and the appeal is granted. Because the Board is granting service connection on a direct basis, all other theories of service connection are rendered moot. Sleep Apnea The Veteran contends that his obstructive sleep apnea is related to his service-connected acquired psychiatric disorder. Therefore, the Board will address secondary service connection. In this regard, he has been diagnosed with obstructive sleep apnea. Specifically, April and August 2010 sleep studies and an October 2016 examination diagnosed obstructive sleep apnea. Therefore, a current disorder has been shown and the first element of service connection has been met. Further, as discussed above, the Veteran has been service connected for an acquired psychiatric disorder. Therefore, the second element of secondary service connection has been met. Next, the record supports a causal nexus between the Veteran’s obstructive sleep apnea and an acquired psychiatric disability. Specifically, in an October 2016 examination, the clinician opined that it was at least as likely as not that the Veteran’s obstructive sleep apnea was caused and permanently aggravated by his depression. The clinician explained that research revealed that psychiatric disorders were commonly associated with obstructive sleep apnea and that people with depression had higher rates of obstructive sleep apnea. The examiner further observed that the Veteran required the use of a CPAP machine for treatment and noted that sleep apnea and psychiatric symptoms both decreased with CPAP treatment. The record is absent a medical opinion that contradicts the link. Thus, affording the Veteran the benefit of the doubt, the elements of secondary service connection have been met and the appeal is granted. Hypertension As an initial matter, the Veteran has not asserted that hypertension is secondary to a service-connected disability; accordingly, secondary service connection will not be considered. However, hypertension is a chronic disease under 38 C.F.R. § 3.309(a); therefore, presumptive service connection and direct service connection will be addressed. Turning first to direct service connection, the Veteran has been diagnosed with hypertension. Specifically, an August 2012 medical treatment note diagnosed hypertension. Accordingly, a current diagnosis has been shown and the first element of service connection has been met. A review of the Veteran’s STRs shows that the Veteran served in Southwest Asia during the Persian Gulf War. However, his heart and vascular systems were found to be clinically normal in his May 1985 and July 1992 separation examinations. As such, hypertension was not noted in his STRs. Therefore, the second element of direct service connection – in-service incurrence – has not been met and the medical evidence does not support the appeal on a direct basis. Turning to the one-year presumption, hypertension did not manifest to a compensable degree within a year of separation from service. In December 2008 and July 2009 medical treatment notes, clinicians diagnosed hypertension. Subsequently, April 2010 and May 2011 medical treatment notes identified a medical history of hypertension. Even assuming that he developed symptoms of hypertension as early as 2008, this is well outside the one-year legal presumption for certain chronic diseases such as hypertension. Therefore, the medical evidence does not support presumptive service connection. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran’s symptoms began as early as 2008, 16 years after his separation from service. Therefore, hypertension was not shown until 2008, with documentation of hypertension beginning at the same time. Accordingly, the medical evidence is against the claim for service connection based on continuity of symptomatology. Degenerative Arthritis For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not show that the Veteran has a confirmed diagnosis of arthritis. To that end, while a December 2008 medical treatment note diagnosed knee pain consistent with osteoarthritis, the Veteran filed his claim for service connection in September 2012. Furthermore, in a subsequent August 2013 VA examination, the examiner noted that imaging studies of the knee were performed and degenerative or traumatic arthritis was not documented. As noted above, service connection may only be granted for a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As there are no confirmed diagnoses of arthritis at any time contemporary to or during the pendency of the appeal, service connection is not warranted and the appeal is denied. With respect to the claims for increased ratings, the Board has considered lay statements offered by the Veteran and his family regarding the etiology of the disabilities addressed above. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, lay witnesses are not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Finally, the Veteran has not raised any other outstanding 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 (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). REASONS FOR REMAND PFB: In October 2015, the Veteran indicated that he continued to have pain when shaving as a result of his PFB. A review of the record shows that he was last afforded an examination for his PFB in August 2013. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. Accordingly, an examination is needed to determine the current level of severity of all impairment resulting from his service-connected PFB. Respiratory Disorder: In a February 2016 VA examination, the Veteran noted that he served in Kuwait during the Gulf War and was exposed to chemicals and smoke from burning oil wells. A review of his DD-214 reveals that he had service in the Southwest Asia theater of operations from August to November 1991. In light of his Southwest Asia service and his statements asserting exposure to chemicals and smoke from burning oil wells, he should be afforded an examination to determine the nature and etiology of any currently present respiratory disorder, to include as due to in-service exposure to environmental hazards during the Persian Gulf War. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the issues remaining on appeal. The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the current status of all impairment resulting from his service-connected PFB. The claims file should be made available to, and reviewed by, the examiner. All indicated tests and studies should be performed. The examiner should provide all information required for rating purposes. 3. Schedule the Veteran for an examination to determine the nature and etiology of any currently present respiratory disorder, to include asthma, with special consideration given to chronic disorders and undiagnosed illnesses. The claims file must be made available to, and reviewed by, the examiner. All indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s respiratory disorder is related to his active service. If no diagnosis is made, the examiner should provide an opinion as to whether the symptoms and disability pattern are attributable to an undiagnosed illness. The rationale for all opinions should be provided. 4. Then, readjudicate the claims on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case to the Veteran and his representative and allow the appropriate time for response. Then, return the case to the Board. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel