Citation Nr: 18152983 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-15 661A DATE: November 27, 2018 ORDER New and material evidence having been received, the claim for service connection for depression is reopened, and to that extent only, the appeal is granted. Service connection for sleep apnea is denied. Service connection for a heart disorder is denied. Service connection for high blood pressure/hypertension is denied. Service connection for headaches is granted. Entitlement to a higher initial rating for tinnitus is denied. An effective date earlier than March 27, 2015, for the grant of service connection for tinnitus is denied. REMANDED Service connection for an acquired psychiatric disorder, claimed as anxiety and depression, is remanded. Service connection for a back condition is remanded. Service connection for a bilateral eye condition is remanded. Service connection for chest pain is remanded. FINDINGS OF FACT 1. In an April 2005 rating decision, the RO denied the Veteran’s claim for service connection for dysthymic disorder (claimed as neurological depression); the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the April 2005 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for depression. 3. A current diagnosis of sleep apnea is not shown by the evidence of record. 4. A current heart disorder diagnosis is not shown by the evidence of record. 5. There is no probative evidence that hypertension was present in service, was present within a year of discharge from service, or is etiologically related to service. 6. The Veteran is competent to report headaches and a private opinion establishes that his headaches are secondary to the service-connected tinnitus. 7. The Veteran’s tinnitus has been assigned a 10 percent disability evaluation, the maximum rating permitted under the regulations. 8. The Veteran submitted an intent to file that was received on March 27, 2015; his formal claim for service connection for tinnitus was received on April 29, 2015. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for high blood pressure/hypertension have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 5. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 6. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2018). 7. The criteria for the assignment of an effective date earlier than March 27, 2015, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2018).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from November 1980 to November 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Claim to Reopen 1. Whether new and material evidence has been received to reopen a claim for service connection for depression The Veteran’s claim for service connection for dysthymic disorder (claimed as neurological depression) was initially denied by way of an April 2005 rating decision. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2018); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran filed a claim to reopen to establish service connection for depression in March 2015. In the October 2015 rating decision that is the subject of this appeal, the RO treated the claim as an original claim and denied it on the merits. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings/actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is 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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The April 2005 final rating decision denied the claim for dysthymic disorder (claimed as neurological depression) because there was no evidence the condition occurred in or was caused by service. Evidence added to the record since the April 2005 rating decision include an assertion that the Veteran has depression as a result of his service-connected tinnitus and a back disorder, as well as a private opinion that the Veteran has major depressive disorder that more likely than not began in service and continued uninterrupted to the present and was aggravated by tinnitus and a back condition. This evidence is new. It is also considered material, as it contributes to a more complete picture of the origins of the claimed disability. Accordingly, the Board finds that new and material evidence has been received and the claim for service connection for depression is reopened. See Shade, 24 Vet. App. 110. The underlying claim is addressed in the remand portion of this decision, below. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include hypertension and certain forms of heart disease. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). 2. Service connection for sleep apnea 3. Service connection for a heart disorder The Veteran, through his attorney, appeals for entitlement to service connection for sleep apnea and a heart disorder. He has not submitted any arguments in support of these claims. The preponderance of the evidence is against the claims for service connection for sleep apnea and a heart disorder. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board has reviewed the medical evidence of record and there is no indication the Veteran has been diagnosed with either sleep apnea or a heart disorder. To the extent the Veteran believes that he has sleep apnea and a heart disorder, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnoses of sleep apnea and a heart disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis of sleep apnea and a heart disorder is not competent medical evidence. The Board finds the medical evidence of record more probative than the Veteran’s lay assertions. Without evidence of a current diagnosis of sleep apnea or a heart disorder, service connection is not warranted and the claims must be denied. 4. Service connection for high blood pressure/hypertension The Veteran, through his attorney, appeals for entitlement to service connection for high blood pressure, but has not presented any arguments in support of this claim. Since the Veteran has been diagnosed during the appeal with hypertension, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records do not reflect diagnosis of or treatment for high blood pressure or hypertension during service. Post-service medical evidence indicates that the Veteran was diagnosed with hypertension in September 2002. Since there is no competent evidence of hypertension in service or within one year following discharge from active duty service in February 1983, service connection is not warranted on a presumptive basis and competent evidence linking the current condition with service is required to establish service connection. No such evidence exists. While the Board acknowledges that no VA examination was conducted in conjunction with this claim, hypertension was not diagnosed in service or the year following discharge from service, and there is no competent evidence suggesting the current hypertension is related to service. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran believes that his hypertension arose in service and/or is related to service, he has not shown that he has specialized training sufficient to diagnose hypertension or determine the etiology of such. See Jandreau, 492 F.3d at 1376-77. As with sleep apnea and a heart disorder, the diagnosis and etiology of hypertension are matters not capable of lay observation, and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of his hypertension is not competent medical evidence. In sum, the preponderance of the competent evidence is against the claim for service connection for high blood pressure/hypertension. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Service connection for headaches The Veteran has submitted a private opinion that his headaches were caused and further aggravated by his service-connected tinnitus. The Veteran is competent to report that he has headaches and this opinion, which stands uncontroverted in the record, establishes that service connection is warranted on a secondary basis. See 38 C.F.R. § 3.310. Increased Rating Claim 6. Entitlement to a higher initial rating for tinnitus Service connection for this disability was granted in the October 2015 rating decision that is the subject of this appeal. An initial 10 percent rating was assigned pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, effective March 27, 2015. The Veteran seeks a higher rating. However, according to VA regulations, a 10 percent evaluation is the maximum schedular rating allowed for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Thus, the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). There is no legal basis upon which to award a higher schedular evaluation. Moreover, neither the Veteran, nor his attorney, has alleged that extraschedular consideration is warranted. Accordingly, the claim for a higher rating is denied. Earlier Effective Date Claim 7. An effective date earlier than March 27, 2015, for the grant of service connection for tinnitus The Veteran filed an intent to file, which the RO received on March 27, 2015. His formal claim for service connection was received on April 29, 2015. See VA Form 21-526EZ. As noted above, the October 2015 rating decision that is the subject of this appeal granted service connection for tinnitus effective March 27, 2015, the date on which the RO received the Veteran’s intent to file. The Veteran, through his attorney, appealed for an effective date for the grant of service connection for tinnitus, but has not provided any arguments in support of the claim or suggested an alternative date. Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). As such, the RO assigned the earliest possible effective date for its grant of service connection for tinnitus, which based on the procedural history as outlined above, was March 27, 2015. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The Veteran’s attorney has provided no argument as to why an earlier effective date is warranted. In sum, the evidence and the law do not support the assignment of an effective earlier than March 27, 2015, the date he filed his intent to file, for the grant of service connection for tinnitus. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, claimed as anxiety and depression, is remanded. 2. Service connection for a back condition is remanded. 3. Service connection for a bilateral eye condition is remanded. The Board has reopened the claim for service connection for depression. Given that the Veteran is also seeking service connection for anxiety, the Board is recharacterizing the claims as service connection for an acquired psychiatric disorder, claimed as anxiety and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Boggs v. Peake, 520 F.3d 1330, 1335 (Fed.Cir. 2008). An October 2013 VA treatment record indicates that the Veteran reported receiving disability a few months prior for blindness in one eye, back pain and depression. When VA has notice that the Veteran may be receiving disability benefits from the Social Security Administration (SSA), and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). On remand, SSA records should be requested. The Board also finds that a VA examination would be helpful in the claim for service connection for an acquired psychiatric disorder. While the Veteran has provided a private opinion that his major depressive disorder more likely than not began in service and continued uninterrupted to the present and was aggravated by tinnitus and a back condition, the opinion was based on review of evidence dated from 2013 forward, and an opinion that considers are more longitudinal review of the record would be helpful to decide the claim. 4. Service connection for chest pain is remanded. A March 2013 VA treatment record indicates that the Veteran’s complaint of chest pain was consistent with anxiety. Therefore, this claim is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and request that SSA provide VA with the Veteran’s complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. A copy of any records obtained from SSA, to include a negative reply, should be included in the claims file. 2. After records development is completed, the Veteran should be afforded a VA mental health examination to determine the nature of his claimed acquired psychiatric disorder and to obtain an opinion as to whether such is possibly related to service or a service-connected disability. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disability arose during service or is otherwise related to service, to include the April 1982 incident when the Veteran swallowed some gasoline and the Veteran’s reported in-service stressors as discussed in a January 2018 statement. If the above opinion is negative, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disability was caused or aggravated (i.e., caused an increase in severity of) by the service-connected tinnitus. A rationale for all opinions expressed should be provided and the opinion should consider the March 2018 private opinion of record. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel