Citation Nr: 18146663 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-00 471 DATE: October 31, 2018 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for asthma. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for tinnitus. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for sleep apnea. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety and posttraumatic stress disorder (PTSD), to include as secondary to toxin exposure, is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for asthma is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an August 2014 rating decision, the claims for entitlement to service connection for asthma, hearing loss, tinnitus and sleep apnea were denied on the ground that the Veteran did not have a current diagnosed disability. 2. The Veteran did not express an intent to appeal the August 2014 rating decision and new and material evidence was not added within one year of that decision. 3. Subsequently received evidence relates to unestablished facts necessary to substantiate the claim for service connection for asthma, hearing loss, tinnitus or sleep apnea, is not cumulative or redundant of the evidence in the record in August 2014, and otherwise raises a reasonable possibility of substantiating the claims. 4. In May 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for service connection for an acquired psychiatric disorder, to include depression, anxiety and PTSD, with instructions to conduct a Veterans Affairs (VA) examination to determine the nature and etiology of any acquired psychiatric disorder. 5. The Veteran failed to appear for his VA examination scheduled for July 2018, and he has not asserted that he failed to receive any correspondence from VA and has not submitted a statement of good cause for his failure to appear for his scheduled VA examination. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the previously denied claims of entitlement to service connection for asthma, tinnitus, hearing loss and sleep apnea. 38 U.S.C. §§ 5108, 7194(b); 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety and PTSD, to include as secondary to toxin exposure, have not been met. 38 U.S.C. §§ 501, 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.655(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from June 1992 to June 22, 1996. The Veteran also served from June 23, 1996, to November 2000, but received a bad conduct discharge. In a September 2013 administrative decision, the VA determined that the period of service from June 23, 1996, to November 3, 2000 was dishonorable and that the Veteran is barred from benefits for that period. The matter comes before the Board on appeal from rating decisions in October 2013 and April 2017 by the VA Regional Office (RO) in Providence, Rhode Island. The Board previously remanded the claim of service connection for a psychiatric condition in May 2018 for a VA examination to determine the nature and etiology of any acquired psychiatric disorder. The matter has now returned to the Board for appellate review. Pursuant to the Board’s remand, the Agency of Original Jurisdiction (AOJ) scheduled a VA examination for the Veteran, but he failed to appear. Under the circumstances, the Board finds that there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran was previously represented by a private attorney. In a letter dated September 13, 2018, the attorney requested to withdraw from representation of the Veteran. In a letter dated October 18, 2018, the Board found that the private attorney’s motion to withdraw met the criteria set forth in 38 C.F.R. § 20.608 and accepted the attorney’s withdrawal. The Veteran’s Contentions The Veteran claims entitlement to service connection for asthma, hearing loss, tinnitus and sleep apnea. The Veteran also claims that he was diagnosed with manic depression after his wife left and took their children. New and Material Evidence The Veteran’s claim for entitlement to service connection for asthma, hearing loss, tinnitus and sleep apnea was originally denied in an August 2014 rating decision. The Veteran did not appeal that decision or seek reconsideration. Accordingly, the August 2014 decision is considered final. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of asthma, hearing loss, tinnitus and sleep apnea considered at the time of the August 2014 rating decision consisted of, among other things, the Veteran’s service treatment and personnel records and his private treatment records from April 1999 through August 1999 and from June 2001 through September 2001. As noted, service connection was denied for the claimed conditions on the ground that there was no evidence of a diagnosed disability. The evidence received since the August 2014 rating decision consists of lay statements submitted on the Veteran’s behalf and records from the Social Security Administration (SSA), including private treatment records from 1999 to 2001. These records are new because they were not considered as part of the August 2014 rating decision. The newly submitted private treatment records are also material as they contain notes regarding the Veteran’s overall health and comments with respect to his “trouble sleeping” and shortness of breath. Accordingly, the newly submitted evidence is material because it may relate to the unestablished facts of the existence of current disabilities. 38 C.F.R. § 3.156(a). The requirements of 38 C.F.R. § 3.156(a) have been met and the previously denied claims for service connection for asthma, hearing loss, tinnitus and sleep apnea are reopened. Service Connection Service connection for an acquired psychiatric disorder 38 C.F.R. § 3.655 mandates the procedure for deciding claims where, as here, a claimant fails to report to a VA examination without good cause. Examples of good cause “include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.” 38 C.F.R. § 3.655(a). Where a claimant fails to appear for an examination that is scheduled in conjunction with an original compensation claim, “the claim shall be rated based on the evidence of record.” 38 C.F.R. § 3.655(b). Here, the Board remanded the claim for service connection for an acquired psychiatric disorder for a VA examination as part of its May 2018 decision. The record reflects that a VA examination was scheduled for July 2018 and the Veteran failed to appear. The record also reflects that the RO attempted to contact the Veteran on the date of the scheduled examination, sent a notification to him after his failure to appear, and issued a supplemental statement of the case in August 2018 relating the Veteran’s failure to appear for the examination. As of this date, VA has not received any mail addressed to the Veteran that has been returned as undeliverable. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (there is a presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (discussing the applicability of the presumption of regularity to RO actions). Nor has the VA received any communication from the Veteran indicating that there is good cause for his failure to appear for the July 2018 examination. Accordingly, the claim for service connection for an acquired psychiatric disorder will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655(b). Here, the evidence of record reflects that the Veteran has been diagnosed with PTSD, anxiety and MDD. Accordingly, he has established the current disability element for service connection. In support of the second element for service connection, the Veteran relies on an incident when he was exposed to an unknown gas while on service and statements from friends that his mental health deteriorated after he experienced marital problems. While the Veteran is competent to relay his experience with an unknown gas, there is no evidence of record suggesting that he is qualified to render an opinion as to the etiology of his psychiatric diagnoses, which are complex and outside the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence of record also indicates that the Veteran’s marital problems occurred after service in 1998 with psychiatric symptoms and treatment arising at that time. The Veteran’s own statement attributes his psychiatric problems to when his wife left him in 1998. The record reflects that the first psychiatric diagnosis was MDD in 1998. As this is outside the time period of the Veteran’s honorable active service, it cannot satisfy the in-service element for service connection. Further evidence from the scheduled VA examination could have provided information to substantiate a causal relationship between the Veteran’s active, honorable service and his current psychiatric disorders, but the Veteran did not attend the examination. There is no medical opinion that supports a nexus to service. The only evidence weighing in favor of the claim comes from the general assertions of the Veteran and his friends relating his psychiatric disability to service. While the Veteran and his friends are competent to report symptoms of a psychiatric disorder, they are not competent to opine on whether there is a link between the Veteran’s current psychiatric disabilities and the claimed in-service events, because such a conclusion regarding causation requires specific, highly-specialized medical knowledge and training regarding the complex processes of the development of a psychiatric disability. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of a mental illness). In sum, based on the evidence of record, the Board is unable to conclude that the Veteran’s current psychiatric diagnoses stem from an in-service event or occurrence, and service connection for an acquired psychiatric disorder is denied. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. 2. Service connection for tinnitus is remanded. 3. Service connection for asthma is remanded. 4. Service connection for sleep apnea is remanded. The Board cannot make a fully-informed decision on these issues because no VA examiner has opined whether any current diagnosis may be related to service. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing impairment, tinnitus, asthma, and sleep apnea. The examiner must opine whether any current diagnosis is at least as likely as not related to an in-service injury, event, or disease. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel