Citation Nr: 18146376 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-26 066 DATE: October 31, 2018 ORDER The application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. The application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is granted. Service connection for cancer of the sinus is denied. Service connection for sleep apnea is denied. A rating in excess of 10 percent for residuals of a fractured nose with a deviated septum is denied. REMANDED Service connection for PTSD. Service connection for an acquired psychiatric disorder, other than PTSD. FINDINGS OF FACT 1. The Veteran had active service from July 1971 to January 1973. 2. The regional office (RO) denied an application for PTSD in an unappealed August 1985 rating decision; another application for PTSD and a personality disorder with depression was denied in an unappealed February 1988 rating decision. 3. The evidence of record at the time of the August 1985 and February 1988 rating decisions established current psychiatric diagnoses, but did not establish a nexus between any current disorder and service. 4. Evidence received since the August 1985 and February 1988 rating decisions relates to previously unestablished facts of a potential nexus between service and the currently diagnosed psychiatric disorders. 5. Diagnoses of cancer of the sinus and sleep apnea are not shown. 6. The residuals of a fractured nose are manifested by no more than 50 percent obstruction of both nasal passages; the disability has not resulted in nasal polyps or incapacitating episodes due to sinusitis. CONCLUSIONS OF LAW 1. The August 1985 and February 1988 rating decisions denying service connection for a PTSD, a personality disorder, and depression are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder, other than PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. Cancer of the sinus was not incurred in service. 38 U.S.C. 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. Sleep apnea was not incurred in service. 38 U.S.C. 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The criteria for a rating in excess of 10 percent for residuals of a fractured nose with deviated nasal septum and mild recurring pharyngitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Codes (DCs) 6502, 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit included the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue, specifically entitlement to service connection for diabetes mellitus, type II, that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. The remaining issues on appeal are not affected and will be considered below.   New and Material Evidence to Reopen PTSD and Acquired Psychiatric Disorder 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). 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). Service connection for PTSD and a personality disorder, with depression, was denied in August 1985 and February 1988 rating decisions. For both disorders, service connection was denied because there was no evidence that the Veteran’s disorders were due to his active service. Both rating decisions became final within one year of notification when he failed to appeal the findings or submit additional evidence. Evidence added to the file since that time includes updated VA and private treatment records which show diagnoses of PTSD, major depressive disorder, blackouts, and psychosis. Additionally, the Veteran has submitted a September 2016 opinion from a private physician opining that his psychiatric disorders are related to his active service. Accordingly, this evidence is new, and it is material in that it raises a reasonable probability of substantiating the Veteran’s claims. To this extent only, the appeals to reopen the applications for PTSD, and an acquired psychiatric disorder other than PTSD, are granted. Service Connection for Cancer of the Sinus and Sleep Apnea 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. In order to grant service connection, the evidence must first demonstrate the current existence of the claimed disabilities. See Holton, 557 F.3d at 1366; Allen v. Brown, 7 Vet. App. at 439. As to the first element of service connection – current disorders – the record includes significant evidence speaking to the Veteran’s medical history, to include VA and private treatment records and VA examinations; however, these records are silent for diagnoses or treatment for the claimed disorders. Further, service treatment records (STRs) are silent for any complaints of, treatment for, or a diagnosis of cancer of the sinus cancer or any sleep problems. Further, in a January 2011 VA examination, the examiner did not render diagnoses with respect to either disorder. With regard to the claim for cancer of the sinus, notations were made referring to a previous sinus surgery in approximately 2005; however, the nature of the surgery is undetermined and the evidence does not show any chronic disability (other than the already service connected deviated septum) or diagnosis of cancer of the sinus. In fact, the notations regarding sinus cancer in the record seemed to be based only on the Veteran’s assertions. In addition, a December 2013 VA examination identified only a deviated nasal septum as the diagnosis related to the sinus, nose, throat, larynx, or pharynx. The Veteran did not assert that he had a history of sinus cancer at that time, and the examiner found no evidence of it. Accordingly, sinus cancer was not diagnosed. As such, the medical evidence does not support findings of chronic disabilities for either disorder. Service connection may not be granted for a diagnosis of a disability by history. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Accordingly, as no current chronic treatment or disorder is shown with respect to sinus cancer or sleep apnea, the appeals are denied. Increased Rating for Residuals of a Nasal Fracture Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s nasal disability is rated as 10 percent disabling under DC 6502, which provides a maximum 10 percent rating for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Under this diagnostic code, there is no allowable higher rating. The Board has considered whether a rating in excess of 10 percent is warranted under DC 6522, as the Veteran has been shown to have a deviated septum according to VA treatment records. However, a higher rating is not warranted under this code as there is no evidence of polyps. Moreover, at no point during this appellate period did he report or the record demonstrate incapacitating episodes/doctor prescribed bedrest due to sinusitis, as is required for the next highest rating under DCs 6510-6514. Additionally, his December 2013 sinus examination revealed no such complications. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s nasal disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other 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, 369-370 (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 Having reopened the claims for PTSD and an acquired psychiatric disorder, other than PTSD, a remand is needed. Specifically, the Veteran submitted a September 2016 private opinion which related his major depressive disorder, with psychosis to his active service. The examiner seemingly based reasoning for the opinion upon buddy statements from the Veteran’s mother and sister, as well as his own timeline of onset. Other reasoning was the citation of medical articles, without relating it to the Veteran’s own psychiatric history and symptomatology. While the Board finds this opinion is, in and of itself, insufficient to grant service connection, it is sufficient to trigger VA’s obligation to afford the claimant further development of the claim. In addition, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the current nature and likely etiology of any diagnosed acquired psychiatric disorder(s), to include PTSD, major depressive disorder, and psychosis. The entire claims file, including a copy of this remand, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. The is asked to offer a medical opinion as to the following: a) Does the Veteran currently have a chronic, acquired psychiatric disorder, to include PTSD and/or major depressive disorder? b) If the Veteran has PTSD, the examiner is asked to offer an opinion as to whether this diagnosis at least as likely as not (50 percent or greater probability) had its origin during, or is in some way the result of, the Veteran’s period of active service, or manifested to a compensable degree within a year of separation from service. c) For any diagnosed acquired psychiatric disorder, other than PTSD, the examiner should state whether that disorder at least as likely as not (50 percent or greater probability) had its origin during, or is in some way the result of, the Veteran’s period of active military service, or manifested to a compensable degree within a year of service separation. The examiner should specifically consider and address all psychiatric treatment, including the January 1988 evaluation, as well as the September 2016 private opinion. A thorough rationale should be provided for all opinions expressed. If the examiner cannot address any questions posed by this remand without resorting to speculation, the examiner must explain why speculation is required. 3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel