Citation Nr: 18151317 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-32 567 DATE: November 20, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. New and material evidence having not been received, the petition to reopen a claim for service connection for bilateral hearing loss is denied. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for tinnitus is denied. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a virus is denied. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a respiratory disorder is granted. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a rash is denied. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, is granted. Entitlement to service connection for tension headaches, as secondary to a psychiatric disorder, is granted. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a kidney disorder is remanded. FINDINGS OF FACT 1. The evidence added to the record since the January 2003 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disability, and raises a reasonable possibility of substantiating the claim. 2. The evidence added to the record since the January 2012 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, and does not raise a reasonable possibility of substantiating the claim. 3. The evidence added to the record since the January 2012 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for tinnitus, and does not raise a reasonable possibility of substantiating the claim. 4. The evidence added to the record since the January 2003 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a virus, and does not raise a reasonable possibility of substantiating the claim. 5. The evidence added to the record since the January 2003 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a rash, and does not raise a reasonable possibility of substantiating the claim. 6. The evidence added to the record since the January 2012 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a respiratory disability, and raises a reasonable possibility of substantiating the claim. 7. The evidence is in approximate balance as to whether the Veteran has a diagnosis of a depressive disorder that is related to service. 8. The evidence shows that the Veteran’s tension headaches are due to his service-connected depressive disorder. CONCLUSIONS OF LAW 1. The January 2003 rating decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.160 (d), 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The January 2012 rating decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.160 (d), 20.1103 (2017). 4. New and material evidence has not been received to reopen the claims of entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The January 2012 rating decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.160 (d), 20.1103 (2017). 6. New and material evidence has not been received to reopen the claims of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The January 2003 rating decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.160 (d), 20.1103 (2017). 8. New and material evidence has not been received to reopen the claims of entitlement to service connection for virus infection. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 9. The January 2003 rating decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.160 (d), 20.1103 (2017). 10. New and material evidence has not been received to reopen the claims of entitlement to service connection for a rash. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 11. The January 2012 rating decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. §§ 3.160 (d), 20.1103 (2017). 12. New and material evidence has been received to reopen the claims of entitlement to service connection for a respiratory disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 13. Resolving doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, to include depressive disorder are met. 38 U.S.C. §§ 1110, 5107, 7104 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 14. The criteria for service connection for tension headaches as secondary to a service-connected psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The issues of mood disorder and PTSD have been combined into one issue and recharacterized as entitlement to service connection for an acquired psychiatric disability, to include depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). REFERRED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) was raised in a May 2016 Mental Disorders Disability Benefits Questionnaire (DBQ) and attachment and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. New and Material Evidence Claims Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). 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 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). 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). But see Duran v. Brown, 7 Vet. App. 216 (1994) (“Justus does not require the Secretary [of VA] to consider the patently incredible to be credible”). 1. Whether new and material evidence has been received to reopen a petition for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) Service connection for PTSD was denied in a January 2003 rating decision. The Agency of Original Jurisdiction (AOJ) determined that there was no diagnosis of PTSD and no evidence of an in-service stressor. Evidence added to the record since the January 2003 rating decision includes a Mental Disorder Disability Benefits Questionnaire (DBQ) dated in May 2016 which includes a diagnosis of depressive disorder and an opinion linking his depressive disorder to service. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. As noted above, the Board has recharacterized the PTSD claim to include other psychiatric disorder. Therefore, new evidence has been received to reopen a petition for service connection for an acquired psychiatric disability. 2. Whether new and material evidence has been received to reopen a petition for service connection for bilateral hearing loss and tinnitus Service connection for a bilateral hearing loss disability and tinnitus was denied in a January 2012 rating decision (code sheet). The AOJ determined that the Veteran had normal hearing and there was no nexus linking the Veteran’s tinnitus to in-service event or disease. The evidence of record at the time of the January 2012 rating decision included, in pertinent part, a September 2011 Audio Examination, the Veteran’s statements, personnel records and service treatment records. Evidence added to the record since the January 2012 rating decision includes the Veteran’s statement that he was exposed to loud noise during service which is duplicative of previous statements made by the Veteran. Furthermore, the Veteran has not reported that his hearing loss disability has worsened. VA treatment records do not show treatment for hearing loss or tinnitus since January 2012. As discussed, no new evidence has been submitted. Thus, the evidence added to the record is not new and material for the purpose of reopening the Veteran’s claim. Thus, the claim of entitlement to service connection for a hearing loss disability and tinnitus may not be reopened. 3. Whether new and material evidence has been received to reopen a petition for service connection for virus infection and rash Service connection for a virus was denied by the AOJ in a January 2003 rating decision. The AOJ determine that there was no chronic virus condition during service or after service. Service connection for a rash was also denied in a January 2003 rating decision. The AOJ determined that there was no evidence of a chronic rash condition. The evidence of record at the time of the January 2003 rating decision included, in pertinent part, personnel records and service treatment records. Evidence added to the record since the January 2003 rating decision includes VA treatment records with no treatment for a rash or virus condition. As discussed, no evidence has been added to the file regarding a current diagnosis of a rash or virus condition. As the evidence added to the record is not new and material for the purpose of reopening the Veteran’s claim, the claim of entitlement to service connection for a rash and virus condition may not be reopened. 4. Whether new and material evidence has been received to reopen a petition for service connection for a respiratory disorder Service connection for a respiratory disorder was denied in a January 2012 rating decision. The AOJ determined that there was no evidence of a current respiratory disability. Since the January 2012 rating decision, evidence added to the record includes a September 2014 Respiratory Conditions DBQ which shows a diagnosis of a current respiratory condition. As there is evidence of a current respiratory diagnosis, the Board concludes that a previously identified defect has been cured, and that the claim may be reopened. The reopened claim is addressed in the remand which follows. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the 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 between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The Board notes that the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 5. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder The Veteran contends that his current psychiatric disability is related to his military service. The Board concludes that the Veteran has a current diagnosis of depressive disorder that began during his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In August 2014, the Veteran received a PTSD DBQ. The examiner found that the Veteran had no mental disorder. The examiner explained that his symptoms were not consistent with DSM IV or 5 diagnosis of PTSD. He reported horrific events but discussed them with ease. The examiner instead found that the Veteran’s difficulty with authority pre-dated his deployment. The examiner noted that he had some depression and irritability but these symptoms did not appear to be causing clinically significant impairment as he was able to maintain relationships. See August 2014 PTSD DBQ. A May 2016 Mental Disorder DBQ shows that the Veteran has a current diagnosis of a depressive disorder. The May 2016 psychologist opined that the Veteran’s depressive disorder more likely than not began during the military service and continued uninterrupted to the present and prevented him from maintaining substantially gainful employment. The psychologist sited to service treatment records showing nervousness and nightmares during service. He also sited to articles noting the impact of military service on mental health. He referenced statements made by the Veteran’s family members noting a significant change in the Veteran after he returned from his military service. VA treatment records show diagnoses of severe depressive disorder, alcohol abuse, and unspecified trauma and stress related disorder. See August 2013 VA treatment record; see also December 2015 VA treatment record. In consideration of the above, the Board has carefully considered this conflicting evidence, and finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether there is a diagnosis of a depressive disorder. Therefore, having resolved doubt in favor of the Veteran, service connection for a depressive disorder is granted. 6. Entitlement to service connection for tension headaches, as secondary to a psychiatric disorder. An October 2016 Headache DBQ noted a current diagnosis of tension headaches. The physician opined that it was as likely as not that the Veteran’s headaches were caused by his depressive disorder. After interviewing and examining the Veteran, the physician provided a reasoned rationale for his opinion and a medical article that discussed the relationships between headache disorders and mental disorders. As service connection has been granted for the Veteran’s acquired psychiatric disability, to include depressive disorder, the Board finds that criteria for entitlement to service connection for headaches on a secondary basis has been met. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder The Veteran claims that he has a sleep disorder that is related to his military service. VA treatment records show that he reported disrupted sleep. See August 2013 VA treatment record. Reports of sleep problems were reported during psychiatric treatment sessions. The Board acknowledges that he received a Respiratory and Sleep Apnea DBQ in September 2014, but a sleep disorder was not noted. As the Veteran is now service-connected for a depressive disorder, the Board finds that the Veteran should be afforded a VA examination to determine whether the Veteran has a sleep disorder that is separate and distinct from his psychiatric disability and whether a sleep disorder is secondary to his service-connected psychiatric disorder. 2. Entitlement to service connection for a respiratory disorder The Veteran was diagnosed with asthma and Chronic Obstructive Pulmonary Disease (COPD) in the September 2014 Respiratory Conditions Disability Benefits Questionnaire (DBQ). The examiner found that his current active diagnosis of COPD was unrelated to his asthma diagnosis during service. The examiner did not opine whether the Veteran’s current disorder was otherwise related to the Veteran’s military service, to include herbicide exposure. For these reasons, an addendum opinion is needed. 3. Entitlement to service connection for a kidney disability A December 2015 VA treatment record notes that the Veteran had renal stones and was treated seven times with Lithotripsy. The Veteran claims that his kidney disability is related to his military service, to include exposure to Agent Orange. See Veteran’s statement dated in May 2014. The Veteran’s personnel records show that he served in Vietnam during his military service. Therefore, he is presumed to have been exposed to herbicide. See the Veteran’s personnel records. Therefore, the Board finds that the evidence of record triggers VA’s duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159(c). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. Specifically, the examiner must opine as to whether that he has a separate sleep disorder that is not merely a symptom of a psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, including service-connected depressive disorder or (2) aggravated beyond its natural progression by service-connected disability, to include depressive disorder. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s respiratory disability is at least as likely as not related to the Veteran’s military service, to include herbicide exposure. The clinician should opine as to whether the Veteran’s respiratory disorder was proximately due to a service-connected disability or aggravated beyond its natural progression by service-connected disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any kidney disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should also provide a history of kidney stones to include whether he was treated with kidney stones or any other kidney disability during the appeal period beginning June 2013 to the present. The examiner must opine as to whether it is at least as likely as not related to in-service herbicide agent exposure. 4. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel