Citation Nr: 18151806 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 18-03 449 DATE: November 20, 2018 ORDER The petition to reopen the previously denied claim for service connection for an acquired psychiatric disability is granted. Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for heart disease is denied. Entitlement to service connection for hypertension (claimed as high blood pressure) is denied. Entitlement to service connection for hepatitis is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for lumbar spine disability is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed April 1974 rating decision denied service connection for acquired psychiatric disability (claimed as nervousness); VA did not receive an appeal or new and material evidence prior to expiration of the appeal period; subsequently received evidence is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. Affording the benefit of any doubt to the Veteran, bilateral hearing loss disability is attributable to noise exposure during his combat service. 3. Affording the benefit of any doubt to the Veteran, tinnitus is attributable to noise exposure during his combat service. 4. Sleep apnea is not shown at any time during this appeal. 5. Heart disease did not have its onset in service or within the initial post separation year, and it is not etiologically related to service. 6. Hypertension did not have its onset in service or within the initial post separation year, and it is not etiologically related to service. 7. Hepatitis is not shown at any time during this appeal. CONCLUSIONS OF LAW 1. The April 1974 rating decision denying the claim for service connection for psychiatric disability (claimed as nervousness) is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for valvular and hypertensive heart disease (claimed as ischemic cardiac heart disease) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), (e). 6. The criteria for service connection for high blood pressure (claimed as hypertension) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 7. The criteria for service connection for hepatitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to March 1969. His medals include the Vietnam Service Medal and Vietnam Campaign Medal. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases, such as, cardiovascular disease (i.e. heart disease and hypertension), the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Similarly, service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases deemed associated with herbicide exposure for purposes of the presumption are set out at 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. However, for the presumption to apply the presumptive disease must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide. 38 C.F.R. §§ 3.307 (a)(6), 3.309(a). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during that service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam means actual service in country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii), 3.313(a). A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 decision makers. 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). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for psychiatric disability. An April 1974 rating decision denied service connection for psychiatric disability because the claimed disorder was not shown in service. VA did not receive an appeal of that decision or new and material evidence prior to expiration of the appeal period. Therefore, the decision became final. The Veteran filed a claim for service connection for psychiatric disability in September 2016. The question for the Board is whether new and material evidence has been received to reopen the previously denied claim. As an initial matter, the Board concludes that the April 1974 rating decision is final because the Veteran did not appeal that decision and VA did not receive new and material evidence prior to expiration of the appeal period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20.201, 20.302, 20.1103. The Board further concludes that evidence received by VA after the April 1974 rating decision does not include evidence that is cumulative or redundant, and relates to an unestablished fact necessary to reopen the claim; thus, new and material evidence has been presented to reopen the previously denied claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). At the time of the 1974 rating decision, the RO considered service records, which were silent for disease or defect of the nervous system, and an April 1974 VA examination, which diagnosed anxiety neurosis with depressive feature. The examination report did not address the etiology of the disability shown. Notably, at the time of the April 1974 rating decision, the Veteran’s certificate of discharge was the only service record associated with the claims file. Recent evidentiary submissions include receipt in November 2016 of the Veteran’s service medical and personnel records. Under 38 C.F.R. § 3.156 (c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Accordingly, the petition to reopen is granted. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. The Veteran contends that bilateral hearing loss and tinnitus began after exposure to automatic weapons fire and mechanized military vehicles during service in Vietnam. The question for the Board is whether there is competent evidence that bilateral hearing loss and tinnitus are related to or caused by service. The Board concludes that the evidence of record supports the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. 38 U.S.C. § 1154(b). The Veteran served in combat during the Vietnam War. Service records show the Veteran’s military occupational specialty was radio relay operator, which has a moderate probability of noise exposure, and that he was assigned to the 4th Infantry Division in Vietnam, which is a mechanized unit. The Veteran also noted duties as a door gunner on a report of medical history completed during service in Vietnam. The Veteran’s statement in support of claim for PTSD described an incident in which an enemy artillery round landed in the Veteran’s compound and killed two of his friends. The medical evidence reflects that the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 and tinnitus. Also, the lay evidence of record is both competent and credible with respect to the onset of hearing problems starting in service and continuing thereafter, and consistent with the provisions of 38 U.S.C. § 1154(b). Although the record includes a January 2017 VA negative medical opinion, the Board finds that the medical opinion has diminished probative value as it is not supported by complete rationale or reflect consideration of the Veteran’s competent statements. Accordingly, affording the Veteran the benefit of any doubt, the claims are granted. 4. Entitlement to service connection for sleep apnea. The Veteran contends that he experienced sleeping disturbances during service. The question for the Board is whether there is competent evidence of sleep apnea that is related to or caused by service. The Board concludes that the preponderance of the evidence is against service connection for sleep apnea because the claimed disability is not shown at any time during the appeal period. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran’s entrance examination show no complaints, treatment, or diagnosis of sleep apnea. The Veteran reported ear, nose, or throat trouble in an August 1968 report of medical history. The Veteran again reported ear, nose, or throat trouble, and sleep walking in a March 1969 report of medical history. However, the March 1969 separation examination reflects no abnormal findings on clinical evaluation. Post service medical records show no complaints, treatment, or diagnosis of sleep apnea. Moreover, the Veteran has submitted no competent lay or medical evidence of persistent or recurrent symptoms of sleep apnea to trigger the duty to provide an examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has considered the Veteran’s statements. However, the Veteran is not competent to diagnose himself with having sleep apnea in service or within the initial post separation year; also, he is not competent to opine that symptoms he had in service are related to sleep apnea as he lacks any medical expertise and a diagnosis is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the weight of the evidence is against the claim. There is no doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for valvular heart disease (claimed as ischemic heart disease). The Veteran contends that heart disease (claimed as ischemic heart disease) is related to or caused by service, to include exposure to herbicide agents in Vietnam. As an initial matter, the Board concludes, while the Veteran is diagnosed with valvular heart disease, he is not diagnosed with a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). For the purposes of 38 C.F.R. § 3.309(e), ischemic heart disease does not include peripheral vascular disease, stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2. The Board further concludes that the preponderance of the evidence is against service connection for valvular heart disease because the claimed disability is not shown in service or within the initial post separation year, and because valvular heart disease is not shown to be related to or caused by service, including herbicide exposure. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007); Combee, supra. The Veteran’s entrance examination shows no complaints, treatment, or diagnosis of heart disease. STRs show no complaints, treatment, or diagnosis of heart disease. The Veteran’s March 1969 separation examination reflects no abnormal clinical findings. Medical records within one year of service show no complaints or diagnosis of heart disease. A January 2017 VA examination noted that valvular heart disease was diagnosed by echocardiogram in October 2014. The examiner opined the Veteran does not have a heart condition which qualifies within the generally accepted medical definition of ischemic heart disease. The examiner further opined that valvular heart disease is less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner reasoned that valvular heart disease is caused by aortic valve stenosis, which is the result of the normal aging process. The Board has considered the Veteran’s statements. However, the Veteran is not competent to diagnose himself with having cardiovascular disability in service or within the initial post separation year; also, he is not competent to opine that any currently diagnosed disease is related to service, to include herbicide exposure, as he lacks the requisite medical expertise to formulate an opinion on a complex medical question such as this and, moreover, the etiology is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s medical opinion has no probative value. The Board assigns greater probative value to the January 2017 VA medical opinion as it was based on examination of the Veteran along with consideration of the claims file to include his medical history and STRs. Moreover, the examiner supported and explained his conclusions. The Board also assigns greater probative value to the STRs showing no abnormal heart pathology along with the first documented problems decades after service. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for hypertension (claimed as high blood pressure). The Veteran contends that hypertension is related to or caused by service, to include exposure to herbicide agents in Vietnam. As an initial matter, the Board concludes the hypertension is not a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). The Board further concludes that the preponderance of the evidence is against service connection for hypertension because the claimed disability is not shown in service or within the initial post separation year, and because hypertension is not shown during the appeal period. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, § 3.309(a); McClain v. Nicholson, 21 Vet. App. 319 (2007). STRs reflect no findings for hypertension. Although the Veteran reported a history of high blood pressure on a March 1969 report of medical history, the Veteran’s March 1969 separation examination shows a normal blood pressure reading of 128/78 and no diagnosis for hypertension. Hypertension is first documented decades after the Veteran’s active service. In a January 2017 VA examination, the examiner noted that hypertension was diagnosed in 1988, according to information entered in the computerized patient record system in 1999. However, on examination the Veteran presented with a normal blood pressure reading of 162/90. The Board has considered the Veteran’s statements. However, the Veteran is not competent to diagnose himself with having hypertension in service or within the initial post separation year; also, he is not competent to opine that symptoms he may have are related to hypertension as he lacks any medical expertise and a diagnosis is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the weight of the evidence is against the claim. There is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 7. Entitlement to service connection for hepatitis. The Veteran contends that hepatitis was incurred in or caused by service. Specifically, he argues that medication for malaria caused hepatitis and required hospitalization for ten days in Vietnam. The Board concludes that the preponderance of the evidence is against service connection for hepatitis because hepatitis is not shown during the appeal period. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran’s entrance examination shows no complaints, treatment, or diagnosis of hepatitis. The Veteran’s March 1969 separation examination reflects no findings for hepatitis or any abnormal liver pathology. The Board notes that STRs show that the Veteran was diagnosed with anemia due to malaria medication given in Vietnam in April 1968. However, STRs show no indication of hospitalization for ten days in Vietnam or findings for hepatitis. Post service medical records show no complaints, treatment, or diagnosis of hepatitis. The Board has considered the Veteran’s statements. However, the Veteran is not competent to diagnose himself with having hepatitis as this is a medical finding based on blood work and evaluation of symptoms, and the Veteran lacks the requisite medical expertise to diagnose the disease, which is not susceptible to lay observation. Jandreau, supra. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the weight of the evidence is against the claim. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Although further delay is regrettable, the following claims must be remanded for further development. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 8. Entitlement to service connection for psychiatric disability. The Veteran contends that psychiatric disability, to include PTSD, is related to or caused by service in Vietnam. In a January 2017 VA examination, the Veteran was diagnosed with major depressive disorder. The examiner opined that the Veteran did not meet the criteria required to diagnose PTSD based on lack of occupational and social impairment. However, the examiner opined that the Veteran presented with marked alterations in arousal and reactivity associated with traumatic events in Vietnam, as evidenced by irritable behavior, angry outbursts, problems with concentration, and sleep disturbances. Moreover, the examiner opined that symptoms of depressed mood, anxiety, chronic sleep impairment, memory loss, disturbances of motivation and mood, difficulty in relations, and difficulty adapting to stressful situations caused occupational and social impairment due to mild or transient symptoms. The Board finds there is an incongruity between the examiner’s opinion that marked alterations in arousal and reactivity associated with traumatic events in Vietnam, as evidenced by irritable behavior, angry outbursts, problems with concentration, and sleep disturbances, do not cause occupational and social impairment, and the opinion that the Veteran’s psychiatric disability causes occupational and social impairment due to mild or transient symptoms. Accordingly, remand is required to obtain another medical opinion. 9. Entitlement to service connection for lumbar spine disability. The Veteran contends that lumbar spine disability is related to or caused by service. STRs show a diagnosis of lumbosacral strain in April 1968. The Veteran also reported pain after building a bunker in January 1969, and the physician diagnosed lumbosacral strain with spasms. However, the Veteran’s March 1969 separation examination noted no back pain or spine disability. The Veteran was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome in a January 2017 VA examination. The examiner opined the disabilities were not related to or caused by service. The examiner reasoned that the in-service lumbosacral strain improved with proper treatment since medical records are silent for lumbosacral disabilities within a decade after service. Additionally, the examiner reasoned that the disabilities were more likely than not (greater than 50 percent probability) caused by age, obesity, and occupational history. However, the Board finds the examination inadequate for several reasons. The examiner did not provide reasoning or identify the evidence which indicated the Veteran received proper treatment for the in-service lumbosacral strain. The Board finds no evidence of physical therapy or any other treatment besides prescribed medication. Also, the Board finds that opinion is inadequate as it appears that the examiner formed a medical opinion based solely on the lack of medical treatment. Additionally, the examiner did not provide reasoning or identify the evidence to support the opinion that a lumbosacral strain which occurred in January 1969 was fully healed by March 1969. Moreover, the examiner listed occupational history as one of the causative factors, and since the Veteran’s occupational history includes two years of active service with a one year of service in Vietnam, the opinion indicates that service was a causative factor. Alternatively, if the examiner intended to opine that 35 years as a teacher or recently as a judo instructor with limited range of motion was causative, the examiner did not reason why those occupations are more likely to cause the diagnosed spine disabilities versus two years of active service with a one year of service in Vietnam. Accordingly, remand is required to obtain another medical opinion. 10. Entitlement to a TDIU. The claim for a TDIU is inextricably intertwined with the pending service connection claims that are being remanded, and adjudication of a TDIU must be deferred until the intertwined issues are decided. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who conducted the January 2017 psychiatric examination, or another appropriate physician if necessary. The examiner should discuss and clarify the incongruity between the opinion that marked alterations in arousal and reactivity associated with traumatic events in Vietnam, as evidenced by irritable behavior, angry outbursts, problems with concentration, and sleep disturbances, do not cause occupational and social impairment, and the opinion that the Veteran’s psychiatric disability causes occupational and social impairment due to mild or transient symptoms. Additionally, the examiner should opine whether the Veteran meets the criteria for a diagnosis of PTSD and, if so, whether the diagnosis for PTSD is at least as likely as not (50 percent probability or greater) related to service. If PTSD is not diagnosed, the examiner should opine whether any diagnosed acquired psychiatric disability is at least as likely as not (50 percent probability or greater) related to service. The examiner should support the opinion with sufficient reasoning and identify the relevant evidence relied upon in reaching his/her conclusions. 2. Obtain an addendum opinion from the examiner who conducted the January 2017 spine examination, or another appropriate physician if necessary. The examiner should provide reasoning or identify the evidence to support the opinion that the Veteran received proper treatment for lumbosacral strains in service. The examiner should provide reasoning or identify the evidence to support the opinion that lumbosacral strains which occurred in April 1968 and January 1969 were fully healed by March 1969. The examiner should clarify whether the Veteran’s two years of active service with one year of service in Vietnam was included in the causative factor of occupational history, and if not, then examiner should provide reasoning or identify the evidence to support the opinion that 35 years as a teacher or recently as a judo instructor with limited range of motion was causative but not the Veteran’s service. Additionally, the examiner should opine whether the Veteran’s spine disability is at least as likely as not (50 percent probability or greater) related to service. The examiner should support the opinion with sufficient reasoning and identify the evidence relied upon reaching his/her conclusions. 3. Schedule the Veteran for examinations by appropriate clinicians to address the symptoms, functional impairments, and medical restrictions (if any) associated with each service-connected disability for the purpose of assessing entitlement to TDIU. The examiner(s) should discuss the effect of the Veteran’s disability(ies) on his ability to perform the mental and physical acts required for employment. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel