Citation Nr: 18146956 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-22 986A DATE: November 2, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, to include as secondary to PTSD, depressive disorder, diabetes mellitus, or medications taken for those conditions, and the request to reopen is granted. New and material evidence has not been received to reopen the claim of entitlement to service connection for a seizure disorder, and the request to reopen is denied. Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to an effective date prior to May 20, 2014, for the grant of entitlement to service connection for left ear hearing loss is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin rash of the right lower extremity is remanded. Entitlement to service connection for tinnitus, to include as secondary to service-connected left ear hearing loss, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for depressive disorder is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to PTSD and depressive disorder, is remanded. Entitlement to service connection for coronary artery disease, to include as secondary to PTSD, depressive disorder, or diabetes mellitus, is remanded. Entitlement to service connection for hypertension, to include as secondary to PTSD, depressive disorder, diabetes mellitus, or medications taken for those conditions, is remanded. Entitlement to service connection for acid reflux, to include as secondary to PTSD, depressive disorder, or diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to PTSD, depressive disorder, or diabetes mellitus, is remanded. FINDINGS OF FACT 1. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension, to include as secondary to PTSD, depressive disorder, diabetes mellitus, or medications taken for those conditions. 2. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a seizure disorder. 3. The Veteran’s left ear hearing loss has manifested in no more than Level III impairment. 4. The Veteran’s diabetes mellitus, type II, has been manifested by use of an oral hypoglycemic agent and a restricted diet, but not by use of insulin and regulation of activities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, to include as secondary to PTSD, depressive disorder, diabetes mellitus, or medications taken for those conditions. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a seizure disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for an initial compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 4. The criteria for the assignment of a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1971. This matter comes before the Board on appeal from September 2013, June 2014, and April 2015 Regional Office (RO) rating decisions. New and Material Evidence Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. A final denial on one theory is a final denial on all theories. Thus, a new theory in support of a claim for a particular benefit is not equivalent to a separate claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as hypertension and epilepsies, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, to include as secondary to PTSD, depressive disorder, diabetes mellitus, or medications taken for those conditions, and the request to reopen is granted. The claim of entitlement to service connection for hypertension was originally denied in a February 2009 rating decision based on a finding that the Veteran’s hypertension did not manifest in service or to a compensable degree within one year of separation from service, and because the record did not contain evidence of a nexus between hypertension and service. The Veteran initiated an appeal but did not perfect it, and the decision became final. In his current claim, the Veteran contends that his hypertension is secondary to his PTSD. He has submitted medical literature asserting such a relationship. As will be discussed below, the PTSD claim is being remanded to obtain a new opinion based on medical evidence that the Veteran does, in fact, have a current PTSD diagnosis. No such evidence was of record at the time of the February 2009 rating decision. The Board therefore finds that the evidence of a current PTSD diagnosis and of a link between the hypertension and PTSD constitutes new and material evidence. The claim is therefore reopened and will be remanded for further development, below. New and material evidence has not been received to reopen the claim of entitlement to service connection for a seizure disorder, and the request to reopen is denied. The claim of entitlement to service connection for a seizure disorder was originally denied in a February 2009 rating decision based on a finding that the Veteran’s seizure disorder did not manifest in service. The RO specifically found that the evidence notes that the Veteran was diagnosed with seizures in 1997, which is approximately 26 years following his separation from service. The rating decision also found that the record did not contain evidence of a nexus between the seizure disorder and service. The Veteran initiated an appeal but did not perfect it, and the decision became final. Even though the September 2013 rating decision found that new and material evidence had been received to reopen this claim, the Board must consider the new and material evidence question independently from the RO’s determination. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The RO did not identify what evidence it deemed to have been new and material, and the Board itself is unable to identify new and material evidence to reopen this claim. Since the February 2009 rating decision, none of the evidence that has been added to the record reflects that the Veteran’s seizures had their onset during service or within one year of separation. Nor has any of the evidence that has been added to the record indicated that there is a relationship between the Veteran’s seizure disorder and his military service. Therefore, new and material evidence has not been received, and the claim of entitlement to service connection for a seizure disorder is not reopened. Increased Rating Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Entitlement to an initial compensable rating for left ear hearing loss is denied. The Veteran has claimed entitlement to an initial compensable rating for left ear hearing loss. This disability is rated pursuant to 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Level I indicates essentially normal acuity, while Level XI indicates profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone test. For each ear, the percent of speech discrimination and the puretone threshold average (which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four) are combined on Table VI to produce a Roman numeral designation. See 38 C.F.R. § 4.85. The Roman numeral designations for hearing impairment of each ear are combined on Table VII to determine the percentage evaluation. If impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I in order to determine the percentage evaluation from Table VII. 38 C.F.R. § 4.85(f). In such cases, the service-connected ear must have hearing impairment of Level X or XI in order to warrant a compensable rating. The Veteran underwent VA examinations in connection with this claim in May 2014 and January 2016. The March 2014 VA examination report shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 25 35 40 40 The March 2014 VA examination report showed average left ear puretone thresholds of 30 decibels and speech recognition of 88 percent. These numbers correspond with Level II hearing. Combining Level II impairment of the left ear with Level I impairment of the right ear produces a noncompensable rating. The January 2016 VA examination report shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 30 40 50 55 The January 2016 VA examination report showed average left ear puretone thresholds of 43.75 decibels and speech recognition of 80 percent. These numbers correspond with Level III hearing. Combining Level III impairment of the left ear with Level I impairment of the right ear produces a noncompensable rating. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the claim is not in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to a compensable disability rating for left ear hearing loss is not warranted. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. The Veteran’s diabetes mellitus is currently rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent evaluation is warranted when there is diabetes mellitus type 2 that requires one or more daily injection(s) of insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The criteria for 40 percent under Diagnostic Code 7913 are one or more daily injection(s) of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities based on clinical findings by a medical professional). Competent medical evidence is required to establish regulation of activities, namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The Veteran underwent VA examination in connection with this claim in September 2015 and May 2017. Both of these examination reports expressly found that the Veteran uses an oral hypoglycemic agent and a restricted diet, but he requires neither insulin nor regulation of activities as part of medical management of diabetes mellitus. The VA and private medical records do not contradict this finding, and neither the Veteran himself nor his accredited representative contends that the Veteran does require regulation of activities to control his diabetes. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the claim is not in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to a rating in excess of 20 percent for diabetes mellitus is not warranted. REASONS FOR REMAND Entitlement to an effective date prior to May 20, 2014, for the grant of entitlement to service connection for left ear hearing loss is remanded. The June 2014 rating decision granted entitlement to service connection for left ear hearing loss and assigned a 0 percent rating effective May 20, 2014. In the July 2014 notice of disagreement, the Veteran’s accredited representative expressly noted that the Veteran was requesting “[e]ntitlement to an increased evaluation for left ear hearing loss and earlier effective date for grant of service connection.” The June 2015 statement of the case addressed the issue of entitlement to an increased rating, but neither this nor any other statement of the case has addressed the issue of entitlement to an earlier effective date. Therefore, it is necessary to remand this claim for the issuance of a statement of the case. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin rash of the right lower extremity is remanded. In an August 2008 statement, the Veteran stated that “sometime around 1975 or 1976 I went to the V.A. hospital in Birmingham with the rash problem [and] they gave me some ointment.” He reported that “the rash that use[d] to come and go has been on my leg for years.” There is no indication that VA has specifically attempted to obtain these records. The Board will therefore remand this claim to attempt to obtain the identified records. Entitlement to service connection for tinnitus, to include as secondary to service-connected left ear hearing loss, is remanded. The Veteran contends that his tinnitus was incurred secondary to his service-connected left ear hearing loss. No opinion has been obtained with respect to this secondary theory of service connection. On remand, an opinion should be obtained with respect to whether the Veteran’s tinnitus is etiologically related to his service-connected left ear hearing loss. In providing an opinion, the examiner must discuss the medical literature on the relationship between noise induced hearing loss and tinnitus that the Veteran submitted in July 2014 and October 2015. Entitlement to service connection for PTSD is remanded. The Veteran underwent VA examination for his PTSD claim in November 2012. At that time, the VA examiner found that the Veteran does not satisfy the criteria for a PTSD diagnosis pursuant to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). The examiner specifically determined that the Veteran’s reported stressors (that he observed soldiers who had been injured and that he was shot at while pulling guard duty) do not meet Criterion A to support a PTSD diagnosis. Prior to November 2012, the Veteran’s VA medical records reflect that the Veteran had negative PTSD screenings. Beginning in 2013, however, PTSD has appeared on the Veteran’s VA Computerized Problem List and diagnostic impressions of PTSD have appeared in the record. A January 2013 VA psychologist’s mental health progress note reflects that “I asked him about some of his experiences in Vietnam, and some of them clearly qualify as [index] Criterion 1A events regarding PTSD.” Given the additions to the record since the November 2012 VA examination report, the Board finds it appropriate to remand this claim for a new VA examination to determine whether a PTSD diagnosis is warranted. Entitlement to service connection for depressive disorder is remanded. The November 2012 VA initial PTSD examination report diagnoses depressive disorder, not otherwise specified, but it does not offer an etiology opinion. The Board will therefore remand this claim in order to obtain an etiology opinion. Entitlement to service connection for a sleep disorder, to include as secondary to PTSD or depressive disorder, is remanded. Entitlement to service connection for coronary artery disease, to include as secondary to PTSD, depressive disorder, or diabetes mellitus, is remanded. Entitlement to service connection for hypertension, to include as secondary to PTSD, depressive disorder, diabetes mellitus, or medications taken for those conditions, is remanded. Entitlement to service connection for acid reflux, to include as secondary to PTSD, depressive disorder, or diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to PTSD, depressive disorder, or diabetes mellitus, is remanded. The Veteran has claimed that these disabilities are related to his PTSD, depressive disorder, diabetes mellitus, or medications taken to treat these conditions. In May 2017, an opinion was obtained with respect to whether the Veteran has complications of his service-connected diabetes mellitus. In July 2014, the Veteran submitted literature that discusses a possible relationship between some of these claimed disabilities and psychiatric disabilities, such as PTSD and depressive disorder. These claims are inextricably intertwined with the PTSD and depressive disorder claims, as resolution of those claims may impact these five claims. The Board will therefore defer adjudication of these claims until the development of the PTSD and depressive disorder claims is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Issue a statement of the case for the claim of entitlement to an effective date prior to May 20, 2014, for the grant of entitlement to service connection for left ear hearing loss. The Veteran should be provided the opportunity to perfect an appeal of this issue by the filing a timely substantive appeal (VA Form 9). 2. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include (a) VA medical records from the Birmingham hospital dated in the 1970s, and (b) all VA medical records that have been created since the Veteran’s records were last obtained in May 2017. 3. Send the claims file to a qualified individual to obtain an opinion that addresses the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s tinnitus was caused OR aggravated by his service-connected left ear hearing loss? The examiner’s opinion should include an express discussion of the medical literature on the relationship between noise induced hearing loss and tinnitus that the Veteran submitted in July 2014 and October 2015. If a new examination is deemed necessary, then one should be scheduled. If an examination is scheduled, all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file should be made available to the examiner. Please provide a complete medical rationale that includes a discussion of the facts of the Veteran’s case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability, to include PTSD and depressive disorder. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim. For each psychiatric disability identified other than PTSD, to include the depressive disorder, not otherwise specified, that was diagnosed during the November 2012 VA initial PTSD examination, 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 psychiatric disability had its onset during active service, or is otherwise etiologically related to the Veteran’s active service, including as a result of his reported in-service stressors. With respect to PTSD, instruct the examiner that any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should first determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. In so determining, the examiner must consider the January 2013 VA mental health progress note in which a VA psychologist stated that “I asked him about some of his experiences in Vietnam, and some of them clearly qualify as [index] Criterion 1A events regarding PTSD.” If the PTSD diagnosis is deemed appropriate, 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 PTSD is related to a reported in-service stressor. A complete rationale for all opinions expressed must be provided. 5. Following completion of the above, and after any additional development deemed appropriate, readjudicate the remanded claims. If any benefit sought on appeal remains denied, the Veteran and his accredited representative should be issued a supplemental statement of the case and given the opportunity to respond thereto. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley