Citation Nr: 18145849 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-03 250 DATE: October 30, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for fibromyalgia is reopened. To this limited extent only, the appeal of that issue is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for depression is remanded. Entitlement to an initial evaluation in excess of 30 percent for service-connected anxiety disorder is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The Veteran’s first claim of service connection for fibromyalgia was denied in a March 2014 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claims was submitted for a period of one year following the March 2014 rating decision. 2. Evidence submitted since the March 2014 rating decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection for fibromyalgia. 3. The record indicates hypertension had its onset approximately fifteen years after the Veteran separated from service; there is no competent evidence in the record of a nexus between the current hypertension and the Veteran’s service. 4. There is no competent evidence in the record of a current disability of tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has been received since the March 2014 denial became final; the criteria for reopening the previously denied claim for fibromyalgia have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1972 to July 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2015, March 2015, and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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). 1. Whether new and material evidence has been received to reopen the claim of service connection for fibromyalgia The Veteran filed his initial fibromyalgia claim in April 2013. The RO denied service connection for that claim in a March 2014 rating decision based on a finding that none of the service connection elements were proven by the evidence of record; specifically, there was no evidence in the record regarding any aspect of the fibromyalgia claim. The Veteran was notified of that decision in a March 12, 2014, notice letter. The Veteran did not submit a notice of disagreement with the decision within one year of that notice letter, nor did he submit any additional evidence respecting the claim until VA treatment records including reports of a diagnosis of fibromyalgia were associated with the record on March 24, 2015. As no timely notice of disagreement or new and material evidence was received during the appeal period following the March 2014 notice letter, the March 2014 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for fibromyalgia. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the March 2014 rating decision, evidence of a current disability has been associated with the record, in the form of reports of a diagnosis from the Veteran to his doctors. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for fibromyalgia has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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. 38 U.S.C. § 1110; 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) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 2. Entitlement to service connection for hypertension The Veteran applied for service connection for hypertension in April 2014, but has not offered any statements or evidence in support of this claim during its pendency. The Veteran’s service treatment records are silent as to high blood pressure readings or any treatment for hypertension. Private treatment records indicate the Veteran visited the emergency department in June 1991 with complaints of high blood pressure, numbness, and chest pain. The Veteran reported that he had first been diagnosed with hypertension approximately three years prior to this, and was treated with medication and diet recommendations. The Veteran’s VA treatment records indicate he continues to be followed for hypertension, and is treated for it with medication and blood pressure monitoring. As noted above, the Veteran has not provided anything further in support of this claim. The medical evidence indicates, by the Veteran’s own report, that hypertension was first noted approximately three years prior to June 1991, which is approximately 15 years after the Veteran separated from service. There is no evidence, either by lay statement or medical evidence, of a link between the Veteran’s current hypertension and his active service. Accordingly, service connection for hypertension is not warranted. 3. Entitlement to service connection for tinnitus Similar to his hypertension claim, the Veteran applied for service connection for tinnitus but provided no statements or evidence to support the claim. The Veteran was afforded a VA audiological examination in March 2015. At this examination, the Veteran reported not experiencing tinnitus. There is no notation in the examination – or elsewhere in the record – of the Veteran reporting having ever experienced tinnitus, or ringing or buzzing in the ears, etc., even when describing noise exposure outside of service in a mechanic’s shop. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no evidence of a current disability of tinnitus in the record, service connection is not warranted. REASONS FOR REMAND 1. The issues of entitlement to service connection for fibromyalgia, vertigo, sleep apnea, and diabetes are remanded. In a March 2015 treatment note in the Veteran’s VA treatment records, the Veteran reported that he was in receipt of disability compensation from the state for “everything,” which the treating physician noted included fibromyalgia. In a March 2015 psychiatric assessment, he reported that he receives disability compensation from the U.S. Department of Agriculture. These records are not in the claims file, and they are potentially relevant to the claims of service connection for fibromyalgia, vertigo, and sleep apnea, as there is no evidence in the record of diagnoses for these claims beyond reports by the Veteran. They are also potentially relevant to the diabetes claim, as there is no indication in the record as to how long the Veteran has been treated for the condition and to what causes, if any, his private treatment provider attributed to it. A remand is therefore necessary to obtain these records. 2. Entitlement to service connection for PTSD is remanded. In a March 2015 psychiatric evaluation, the Veteran reported in-service stressors including being required to perform physical training while in a cast for his ankle injury, and being harassed by a group of 4-5 other soldiers who thought he had turned them in. The Veteran also reported similar stressors in a private psychological assessment performed in June 2016. He reported that these other soldiers were abusing drugs and threatened his life. The February 2015 VA psychiatric examination did include a diagnosis of PTSD, but in a March 2015 VA treatment note, the Veteran reported that he had not been aware that he had PTSD until that examination. As such, the Veteran had not reported any in-service stressors in order to develop a claim for PTSD or to report to the examiner, and the examiner did not have this information available when making the diagnosis of PTSD due to pre-service stressors. On remand, the RO should develop the Veteran’s PTSD claim, to include attempting to verify the reported stressors and providing another examination, if needed. 3. Entitlement to service connection for depression is remanded. In a February 2015 VA examination, the Veteran was diagnosed with depression. The examiner initially described this condition as secondary to fibromyalgia, ankle condition, diabetes, and pain, but later characterized it as secondary to chronic pain from fibromyalgia and diabetic nerve pain. On remand, the RO should obtain an addendum opinion assessing whether the depression is caused by or aggravated by the service-connected ankle tendonitis or any service-connected condition, the fibromyalgia, diabetic nerve pain, or a combination of any of these. 4. Entitlement to an initial evaluation in excess of 30 percent for service-connected anxiety disorder The evaluation of the service-connected anxiety disorder is intertwined with the depression and PTSD issues remanded above, and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Entitlement to service connection for headaches is remanded. In a February 2018 written statement, the Veteran asserted that his headaches are caused by the anxiety disorder and related symptoms. He reported that his headaches are aggravated when he is stressed due to the anxiety disorder. In support of this statement, the Veteran submitted some articles from medical journals. As evidence relevant to this claim may result from the remands of the PTSD, anxiety disorder, and depression issues, it is intertwined with those issues and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the RO should obtain a VA examination for this condition to determine whether the headaches are related to the Veteran’s service. The matters are REMANDED for the following action: 1. First, with any necessary authorization from the Veteran, obtain documentation from the appropriate office in Oregon and the U.S. Department of Agriculture regarding the Veteran’s disability benefits. The Veteran may also submit these documents himself. If these documents cannot be acquired, this should be documented in the claims file. 2. The RO should attempt to verify the stressor or stressors identified by the Veteran, to include soliciting relevant information about the stressors from the Veteran, and should undertake any additional indicated development related to the PTSD claim, if necessary. If an examination is necessary, instruct the examiner to comment upon the June 2016 private examination, which includes PTSD symptoms as a feature of the service-connected anxiety disorder rather than a unique diagnosis. 3. Schedule the Veteran for an examination with an appropriate clinician to determine whether the reported headaches are related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the headaches began in or are otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the headaches are (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected anxiety disorder. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the headaches prior to aggravation by the service-connected disability. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Forward the claims file to an appropriate clinician to determine whether the diagnosis of depression is secondarily related to the Veteran’s military service. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the depression is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by any of the Veteran’s service-connected disabilities and/or the combined effects of several service-connected disabilities. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the depression prior to aggravation by the service-connected disabilities. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel