Citation Nr: 18148390 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-40 566 DATE: November 8, 2018 ORDER As new and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for transverse myelitis, the claim is denied. Entitlement to service connection for a sleep disorder, to include sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a urinary impairment is denied. Entitlement to service connection, to include on a secondary basis, for headaches is denied. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder (previously claimed as posttraumatic stress disorder) is granted. FINDINGS OF FACT 1. An August 2012 rating decision denied service connection for transverse myelitis. 2. The evidence received since the August 2012 rating decision is cumulative and redundant, and neither relates to an unestablished fact necessary to substantiate the claim, nor raises a reasonable possibility of substantiating the claim for service connection for transverse myelitis. 3. The Veteran does not have a sleep disorder. 4. The Veteran’s hypertension was not incurred in or aggravated by active duty service. 5. The Veteran does not have a urinary impairment. 6. The Veteran does not have a headache disability. 7. Resolving all reasonable doubt in favor of the Veteran, his psychiatric disorder is related to active service. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for transverse myelitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2018). 2. The criteria for a sleep disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 3. The criteria for hypertension have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for urinary impairment have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for headaches have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 6. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that the Veteran submitted a notice of disagreement (NOD) in October 2015 with respect to his claim for duodenal ulcer. The record reflects that the RO has acknowledged the NOD and is actively processing it. The Board consequently will not take further action on that claim at this time. Compare Manlincon v. West, 12 Vet. App. 238 (1999). The Board has re-characterized the Veteran’s claim for a psychiatric disorder as it appears on the cover page. In making this determination, the Board notes that the Veteran has been diagnosed with different psychiatric disorders, including posttraumatic stress disorder (PTSD) and unspecified anxiety disorder, and that a grant of service connection for an acquired psychiatric disorder incorporates all such psychiatric symptomatology reported by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Mittleider v. West, 11 Vet. App. 181, 182 (1998). Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran has not had VA examinations for sleep disorder, hypertension, urinary problems, or headaches. However, the Board finds that examinations are not necessary because the record does not establish the in-service presence of an associated event, injury or disease. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Accordingly, VA’s duties to notify and assist are met. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. New and Material Evidence A rating action from which an appeal is not perfected becomes 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. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. In an August 2012 rating decision, the RO denied service connection for transverse myelitis, to include as secondary to the Veteran’s claimed PTSD. The RO indicated that the evidence neither showed an in-service event, injury, or disease, nor was there a link between the Veteran’s transverse myelitis and his service-connected disability or the claimed PTSD. The pertinent evidence of record at the time was the Veteran’s service treatment records (STRs) and post-service medical treatment records from 1997 to 2012. Since the August 2012 rating decision became final, the only new evidence that the Veteran has submitted related to transverse myelitis is a statement in support of his claim indicating that he had a car accident in-service which caused his PTSD and resulted in his transverse myelitis. The evidence added to the record is not new and material because it merely repeats allegations that his transverse myelitis was related to service and suggests an alternative in-service event which was already of record at the time of the last final denial of the Veteran’s claim in August 2012. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim of service connection for transverse myelitis, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Sleep Disorder The Veteran’s STRs are silent for any complaints, treatment, or diagnosis of a sleep disorder or related symptoms. In May 2013, the Veteran underwent a psychological VA examination in which he reported experiencing recurring distressing dreams of the event. The examination notes that the Veteran had chronic sleep impairment. A January 2012 private mental health treatment evaluation indicates that prior to starting Valium 14 years earlier, the Veteran reported that he could not sleep and would wake up constantly. Additionally, his wife, in a June 2016 written statement, indicated that the Veteran would awaken at night screaming and sweating due to nightmares, and his doctor prescribed him Valium to help him sleep. An evaluation conducted by a private psychologist in July 2016 indicated that the Veteran suffers from chronic sleep impairment including insomnia, broken sleep, and nightmares. There is no evidence of record providing a diagnosis of sleep apnea or a related sleep disorder. The Veteran is competent to report his symptoms; however, to the extent that such assertions purport to establish a current disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of a current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). To the extent that the Veteran experiences symptoms of difficulty sleeping, sleep impairment is a symptom contemplated by psychological disorders, for which the Veteran has received a diagnosis. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for a sleep disorder. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 3. Hypertension For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1 (2018). A diagnosis of hypertension “must be confirmed by readings two or more times on at least three different days.” Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran’s entrance examination and STRs are negative for any complaints, treatment, or diagnosis related to high blood pressure or hypertension. Upon entrance, the Veteran’s blood pressure reading was 130/86. A May 2001 post-service medical treatment record provides a blood pressure reading of 125/90. In a May 2010 treatment record, the Veteran’s blood pressure reading was 110/62. A May 2011 blood pressure reading was 100/60. In a November 2011 treatment record, the Veteran’s blood pressure reading was 104/70. A January 2013 medical treatment record indicated a blood pressure reading of 120/80. In a May 2013 treatment record, the Veteran’s blood pressure reading was 130/80. Treatment records indicate that the Veteran had a history of hypertension and took medication for his blood pressure. After review of the evidence, the Board is unable to attribute the Veteran’s hypertension to his military service. The earliest relevant medical evidence of record indicating the presence of high blood pressure is in 2001, approximately 30 years after separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, there is no medical opinion of record indicating that the Veteran’s hypertension was incurred in or otherwise related to active service. Moreover, there is no competent medical or lay evidence demonstrating continuity of symptoms since service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for hypertension. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). 4. Urinary Impairment The Veteran’s STRs are silent for any complaints, treatment, or diagnosis for a urinary impairment or related disorder. Post-service medical treatment records are also negative for any complaints, treatment, or diagnosis of a urinary impairment or related disorder. The only mention of any potential urinary related symptoms is among the Veteran’s neurology medical records. These records include results of lab work that was conducted in September 2012, which showed a glomerular filtration rate (GFR) of 59 and indicated that a GFR between 15 and 59 ml/min/1.73 sq. meters for more than three months could be indicative of kidney disease. A neurology treatment record from January 2013 indicated that the Veteran experienced some urgency but no incontinence. There is no evidence of record indicating any urinary impairment or a related disorder. There is neither treatment records interpreting the provided lab results, nor any medical notes or opinion providing a diagnosis or disability relating to a urinary disorder. The Veteran is competent to report his symptoms; however, to the extent that such assertions purport to establish a current disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). As there is no indication in the record of a current disability, the Board finds that the preponderance of the evidence is against the claim for service connection for urinary impairment. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 5. Headaches The Veteran claims that he has frequent prostrating headaches which are caused and aggravated by his mental health disorder. The Veteran’s in-service STRs are silent for any complaints, treatment, or diagnosis of headaches. A military health assessment conducted in July 1986 indicated that the Veteran experienced frequent or severe headaches. Post-service medical records do not reflect any complaints, treatment or diagnosis of a headache disability. In fact, in a post-service medical treatment note from May 2013, the Veteran explicitly denied chronic headaches. Headaches are an observable condition of which the Veteran is competent to provide lay testimony. However, the only favorable evidence of record is from over 30 years ago. None of the Veteran’s mental health assessments or medical treatment records have indicated that the Veteran suffers from headaches. Nor has the Veteran submitted any testimony regarding his headaches. Therefore, the Veteran does not exhibit a headache disability that had its clinical onset in service or that is otherwise related to active service. Moreover, he has not shown any level of functional impairment. In the absence of proof of a present disability or any complaint related to chronic or recurrent symptoms, there can be no valid claim. 38 C.F.R. § 3.317; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board acknowledges that the Veteran’s attorney has submitted medical literature demonstrating a link between psychiatric disorders and headaches, in the absence of any competent evidence of a headache disability or documentation of complaints of chronic or recurrent symptoms related to such a disorder, the Board concludes that the Veteran does not currently suffer from such a disability. For these reasons, service connection is not warranted. As there is no indication in the record of a current disability, no discussion of whether service connection is warranted on a separate theory is necessary, to include a discussion of whether the Veteran’s acquired psychiatric disorder is proximately due to or a result of his service-connected disabilities. The Board finds that the preponderance of the evidence is against the claim for service connection for headaches. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 6. Acquired Psychiatric Disorder The Veteran has claimed several theories of entitlement to service connection for his acquired psychiatric disorder, including that his disorder is a result of his experience in Vietnam, an in-service car accident, and secondary to his service-connected ulcer. The Veteran’s STRs are silent for any in-service complaints, treatment, or diagnosis for a psychiatric disorder. Post-service medical treatment records reflect a medical history of PTSD. A January 2012 private mental health evaluation indicates that the Veteran had a chronic form of PTSD as a direct result of his experience serving in the Vietnam War. The Veteran reported that he handled many dead and wounded and lost two friends to combat. The provider indicated that the Veteran suffered from symptoms of reexperiencing, avoidance of stimuli associated with the traumatic event, numbing of responsiveness and increased arousal, and the Veteran had suffered these symptoms for over forty years, interfering with his social and vocational functioning. The evaluation also notes that, as a result of his disorder, the Veteran had developed a dependence on cannabis to self-medicate his symptoms. The Veteran was afforded a VA examination for his psychological disorder in May 2013. The Veteran received a diagnosis of PTSD. The examiner indicated that the Veteran also suffered from chronic pain secondary to an orthopedic condition and noted that his chronic pain exacerbates his depressed mood. The examination notes that the Veteran reported that while on a temporary duty assignment from Okinawa in Vietnam, he witnessed casualties and handled dead bodies. Additionally, the Veteran indicated that back in Okinawa, he witnessed a plane crash, killing all of the passengers. The examiner indicated that the Veteran suffered from symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment, causing occupational and social impairment due to mild or transient symptoms. Subsequently, the Veteran received an assessment in July 2016 from a private psychologist, noting a diagnosis of unspecified anxiety disorder. After reviewing the Veteran’s STRs, VA and private mental health evaluations, the provider indicated that the Veteran’s anxiety disorder more likely than not began in military service, continued to present, and his service-connected ulcer arose in the military as a symptom of his underlying anxiety disorder due to increased stress. The evaluation notes that the Veteran suffered from symptoms of suicidal ideation, chronic sleep impairment, difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances, disturbances of motivation and mood, near continuous panic and depression, mild memory loss, impairment of short and long-term memory, neglect of personal hygiene and intermittent inability to perform activities of daily living. A written statement from the Veteran’s sister, a clinical psychologist, indicated that the Veteran returned from active duty tense, agitated, and more withdrawn. She noted that since his separation from service, the Veteran struggled with depression, anxiety, and social isolation, appearing tense and disconnected. His sister also indicated that she recognized the signs of PTSD in the Veteran. The Veteran’s wife, in a June 2016 written statement, noted that after the Veteran returned from Vietnam, he took leave and went home, at which time she indicated that the Veteran remained in bed with stomach pains. She noted that there was a noticeable difference in the Veteran’s demeanor, and while she indicated that the Veteran refused to talk about his experience, he did report that he saw parts of dead bodies in Vietnam. She further indicated that after the Veteran separated from active service, he was withdrawn, belligerent, angry, antagonistic, sarcastic, depressed, and would wake up in the middle of the night screaming and sweating. As a preliminary matter, the Board recognizes the inconsistent diagnoses in the record. On one hand, the Veteran’s post-service treatment records and January 2012 private evaluation reflect diagnoses of PTSD, and the May 2013 VA examination notes a PTSD diagnosis. On the other hand, the July 2016 private mental health evaluation indicates that the Veteran suffers from unspecified anxiety disorder. Here, the Board finds that service connection is warranted for the psychiatric disability that is currently afflicting the Veteran. To that extent, the Board notes that any inconsistency regarding the diagnoses of a specific psychiatric disorder is harmless for rating purposes because a grant of service connection for an acquired psychiatric disorder incorporates all such psychiatric symptomatology reported by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board finds no prejudice to the Veteran will result in the adjudication of his claim. Concerning an in-service event, illness, or injury, the Veteran has consistently reported psychiatric symptoms stemming from one or more traumatic events in service. Military personnel records reflect the Veteran’s military occupational specialty (MOS) included Second Supply Squadron, with foreign service in Okinawa, Japan. On numerous occasions, the Veteran reported that while stationed in Okinawa, he was sent to Vietnam to help with the war effort. This is corroborated by a written statement supplied by the Veteran’s wife, who was married to him at the time. He also reported experiencing a car accident in 1969, which is confirmed in the Veteran’s April 1969 STRs. Lay statements indicate that since separation from service, the Veteran experienced symptoms of depression, anxiety, sleep impairment, and social isolation. This further strengthens the Veteran’s assertions regarding experiencing psychiatric symptoms due his experience in service. Finally, the evidence of record plausibly suggests a nexus between the Veteran’s acquired psychiatric disorder and military service. Specifically, each mental health evaluation reflects an opinion that the Veteran’s psychiatric disorder is related to military service. This is echoed by the lay statements indicating that events in service caused the Veteran a great deal of mental distress with continuous symptoms since. He identified symptoms that are readily attributable to psychiatric disorders, including depression, anxiety, chronic sleep impairment, and isolation. Based on the above, the Board finds that the medical evidence is, at least, in equipoise as to whether the Veteran’s acquired psychiatric disorder was caused by or otherwise etiologically related to his active military service. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for an acquired psychiatric disorder is warranted. As the Board is granting the claim on a direct theory of entitlement, no discussion of whether service connection is warranted on a separate theory is necessary, to include a discussion of whether the Veteran’s acquired psychiatric disorder is proximately due to or a result of his service-connected disabilities. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel