Citation Nr: 18146952 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-41 053A DATE: November 2, 2018 ISSUES 1. Whether new material evidence has been submitted to reopen the claim for service connection for tinnitus; and if so, whether the claim should be granted for substitution purposes. 2. Whether new material evidence has been submitted to reopen the claim for service connection for right ear hearing loss, for substitution purposes. 3. Entitlement to service connection for unspecified depressive disorder, for substitution purposes. 4. Entitlement to service connection for headaches, for substitution purposes. 5. Entitlement to service connection for sleep apnea, for substitution purposes. 6. Entitlement to service connection for a back disability, for substitution purposes. 7. Entitlement to a compensable rating for left ear hearing loss, for substitution purposes. 8. Entitlement to a compensable rating for residual Osgood-Schlatter disease, right knee, for substitution purposes. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for tinnitus, for substitution purposes, is granted. Entitlement to service connection for tinnitus, for substitution purposes, is granted. Entitlement to service connection for unspecified depressive disorder, for substitution purposes, is granted. Entitlement to service connection for headaches, for substitution purposes, is granted. Entitlement to service connection for sleep apnea, for substitution purposes, is granted. REMANDED Whether new material evidence has been submitted to reopen the claim for service connection for right ear hearing loss, for substitution purposes, is remanded. Entitlement to service connection for a back disability, for substitution purposes, is remanded. Entitlement to a compensable rating for left ear hearing loss, for substitution purposes, is remanded. Entitlement to a compensable rating for residual Osgood-Schlatter disease, right knee, for substitution purposes, is remanded. FINDINGS OF FACT 1. Service connection for tinnitus was denied in a November 1991 rating decision that was not appealed. 2. Evidence received since the November 1991 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection for tinnitus. 3. The Veteran’s tinnitus was etiologically related to service. 4. The Veteran’s unspecified depressive disorder was etiologically related to service. 5. The Veteran’s headaches were etiologically related to tinnitus and unspecified depressive disorder. 6. The Veteran’s sleep apnea was etiologically related to service and unspecified depressive disorder. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for tinnitus are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 3. The criteria for service connection for unspecified depressive disorder have been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 4. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). 5. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to August 1988. The Veteran died in May 2017. The Appellant is the Veteran’s surviving mother. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In July 2017 the Appellant requested to be substituted as the claimant in the Veteran’s claims pending at the time of his death. This request for substitution was granted by the RO in February 2018 correspondence. Therefore, 38 U.S.C. § 5121A and implementing regulation 38 C.F.R. § 3.1010 are applicable, and the Appellant’s claim is not one for accrued benefits, but remains the Veteran’s original claim, into which she is substituted. The Board notes that the Veteran initially filed a claim for service connection for depression; however, he was diagnosed with unspecified depressive disorder. As such, the Board has amended the issue on appeal to reflect this diagnosis. The Board notes that the issue of entitlement to a total rating based on individual employability due to service-connected disabilities was raised in February 2017 correspondence but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and the issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). Service Connection I. Reopening Service Connection Claims Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for tinnitus was denied in the November 1991 rating decision that was not appealed. Service connection was denied based on a determination that the evidence did not show that tinnitus was diagnosed in service. The evidence submitted in pertinent part since this decision includes a February 2017 statement by Dr. H.S. in which he stated that the Veteran suffered from tinnitus since his time in the Army. Because such statement was not present at the time of the prior final denial, this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for tinnitus is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). II. Service Connection Claims The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable decision is a full grant of the issues addressed, further explaining how VA has fulfilled the duties to notify and assist is unnecessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or Appellant be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Tinnitus Private examinations show diagnoses of tinnitus. Accordingly, Hickson element (1) is met. The Veteran’s DD Form 214 shows that he was an armor crewman. Accordingly, noise exposure in service is conceded and Hickson element (2) is met. In an August 1991 VA examination, the Veteran reported hearing loss and tinnitus; tinnitus occurring on the left at least 30 percent of the time. It was noted that he had significant exposure to noise as a result of being around tank and artillery noise. A January 2017 mental disorders disability benefits questionnaire and February 2017 headaches disability benefits questionnaire showed complaints of tinnitus, to include complaints of tinnitus since his time in the Army. The Veteran consistently reported that he had tinnitus since his time in the Army. Tinnitus is a chronic disease listed under 38 C.F.R. § 3.309 (a) (2017); therefore, the provisions of 38 C.F.R. § 3.303 (b) (2016) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to inter-current causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b) (2017). Thus, with respect to Hickson element (3), as outlined above the Board found that the Veteran competently and credibly reported a continuity of symptomatology since service in regard to tinnitus. Applying the presumption regarding chronic diseases discussed above, and resolving reasonable doubt in the Appellant’s favor, the Board finds that service connection is warranted for tinnitus, for substitution purposes. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). Unspecified Depressive Disorder A January 2017 mental disorders disability benefits questionnaire showed that the examiner diagnosed unspecified depressive disorder. Accordingly, Hickson element (1) is met. In a June 1988 report of medical history, the Veteran indicated that he had depression or excessive worry. Accordingly, Hickson element (2) is met. In the January 2017 mental disorders disability benefits questionnaire, after review of the evidence of record and examination of the Veteran, the examiner opined that the unspecified depressive disorder more likely than not began in military service, continued uninterrupted to the present, and was aggravated by the right knee residual Osgood-Schlatter disease and left ear hearing loss. Based on the foregoing, the Board finds that this opinion is competent and adequate for VA purposes. The examiner conducted a comprehensive review of the claims file, interviewed and examined the Veteran, and supported the conclusions reached with medical literature and competent and credible evidence on file. Accordingly, the Board concludes that the evidence adequately supports a grant of service connection for unspecified depressive disorder, for substitution purposes. Headaches A February 2017 headaches disability benefits questionnaire diagnosed tension headaches. Accordingly, Hickson element (1) is met. In a June 1988 report of medical history, the Veteran indicated that he had frequent or severe headaches. Accordingly, Hickson element (2) is met. In the February 2017 headaches disability benefits questionnaire, the Veteran reported that his headaches began in service. After review of the evidence of record and examination of the Veteran, the examiner opined that it was as likely as not that the Veteran’s headaches were caused by his tinnitus and depression; that the Veteran suffered from tinnitus and headaches since his time in the Army. The examiner stated that it was known that damage to the auditory system resulting in tinnitus could also cause headaches. The examiner also stated that it was well established that mental disorders both caused and aggravated headaches. Based on the foregoing, the Board finds that this opinion is competent and adequate for VA purposes. The examiner conducted a comprehensive review of the claims file, interviewed and examined the Veteran, and supported the conclusions reached with medical literature and competent and credible evidence on file. Accordingly, the Board concludes that the evidence adequately supports a grant of service connection for headaches, for substitution purposes, as secondary to the service-connected tinnitus and depression. Sleep Apnea A February 2017 sleep apnea disability benefits questionnaire diagnosed obstructive sleep apnea (OSA). Accordingly, Hickson element (1) is met. It is argued that the Veteran’s OSA was caused or aggravated by his unspecified depressive disorder. Accordingly, Hickson element (2) is at least arguably met. In the February 2017 sleep apnea disability benefits questionnaire, the examiner stated that it was as likely as not that the Veteran’s depression aided in the development and permanently aggravated his OSA. The examiner also opined that it was as likely as not that his OSA developed during his time in service. Based on the foregoing, the Board finds that this opinion is competent and adequate for VA purposes. The examiner conducted a comprehensive review of the claims file, interviewed and examined the Veteran, and supported the conclusions reached with medical literature and competent and credible evidence on file. Accordingly, the Board concludes that the evidence adequately supports a grant of service connection for sleep apnea, for substitution purposes, to include as secondary to the service-connected unspecified depressive disorder. REASONS FOR REMAND The Board finds that additional evidentiary development is warranted before adjudication of the remaining issues on appeal. The Board notes that in an August 2016 VA treatment note, it was stated that the Veteran was being treated at Group Health and brought in hearing evaluations that were conducted in July 2016 and August 2016. These records are not associated with the electronic claims file and should be sought on remand. Moreover, in a January 2017 mental disorders disability benefits questionnaire, it was noted that the Veteran began receiving Social Security Administration (SSA) benefits in 2016 for his physical difficulties. VA has a duty to obtain SSA records when it has actual notice that the Veteran received SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 U.S.C. § 5103A (c)(3); 38 C.F.R. § 3.159 (c)(2); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As such, SSA records should be requested on remand and associated with the claims file. The matters are REMANDED for the following action: 1. Obtain, directly from SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. 2. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization, any additional outstanding private treatment records identified as pertinent to the claims, to specifically include records from Group Health. The Appellant and her attorney are to be notified of any unsuccessful efforts in this regard, in order to allow the opportunity to obtain and submit any such records for VA review. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the AOJ must furnish the Appellant and her attorney with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel