Citation Nr: 18153962 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-50 084 DATE: November 29, 2018 ORDER Service connection for a chronic respiratory disability, including chronic bronchitis, is denied. Service connection for headaches is denied. The petition to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, post traumatic stress disorder (PTSD) is granted. Service connection for PTSD is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability (other than PTSD) is remanded. FINDINGS OF FACT 1. A chronic respiratory disorder is not attributable active duty service. 2. A headache disorder is not attributable to active duty service. 3. An unappealed July 2014 rating decision denied service connection for PTSD; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 4. The Veteran does not have a confirmed diagnosis of PTSD in accordance with the 38 C.F.R. § 4.125(a). CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a headache disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The July 2014 rating decision denying the claim for service connection for PTSD 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. 4. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to January 1994. 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). 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. Entitlement to service connection for a chronic respiratory disability. The Veteran contends that he was exposed to hazardous materials during the Gulf War and, as a consequence, has had bronchitis about once a year for the past ten years during the fall and winter months. See June 2018 appeal brief. The Board concludes that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of any chronic respiratory disability. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Available service treatment records (STRs) show no complaints, treatment, or diagnosis for a respiratory condition during active service. Although the Veteran reported asthma on his November 1993 service separation examination, clinical evaluation of the lungs was normal. A November 1993 chest x-ray reflects no evidence of active chest disease. Numerous lay statements address the Veteran’s health conditions, but they do not refer to him having a respiratory condition in service or afterward. VA treatment records reflect no diagnosis for a chronic respiratory disability. VA received an original claim for disability compensation in December 1996, but the Veteran did not report having any respiratory disability due to active service. In August 2013, a decade after service separation, VA received the Veteran’s claim for service connection for respiratory disability. A July 2016 VA examination reports shows a diagnosis for a “tobacco use disorder (smoking).” The examiner indicated that this is related to his life long heavy smoking of at least a pack of cigarettes per day. The examiner noted that the Veteran’s VA medical records do not show he requires corticosteroid medications, inhalers, oral bronchodilators, antibiotics, or oxygen therapy. The Veteran’s tobacco use disorder does not impact his ability to work. The examiner opined that the Veteran had no diagnosable current or past respiratory condition except chronic tobacco abuse, with no in service diagnosis, minimal symptoms in recent years, none of which are diagnostic of bronchitis. The Board accepts that the Veteran is competent to report his symptoms and past treatment for acute episodes of bronchitis. However, he is not competent to diagnose himself with a chronic respiratory disability (or one that is etiologically related to service as he lacks the requisite medical expertise and training). A diagnosis of chronic respiratory disease is not susceptible to lay observation; and the etiology of such disease similarly is not susceptible to lay observation. The etiology of a respiratory disease is a complex medical question beyond the ken of laypersons. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). However, in this case, the existence of a respiratory disability is at issue. The Board assigns greater probative value to the July 2016 VA examination report showing no current diagnosis for a chronic respiratory disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). 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). See also Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). Because competent evidence has not been presented showing that the Veteran has, or has had at any time during the appeal, a current diagnosis of a chronic respiratory disability, 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). 2. Entitlement to service connection for a headache disability. The Veteran contends that he had frequent headaches while in service, and has had headaches for many years since service. The Board concludes that the preponderance of the evidence is against the claim of service connection for headaches. A headache disability did not have its onset in service and is not otherwise related to an in-service disease, injury, or event. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Headaches are first documented more than a decade after the Veteran’ service separation and are not etiologically linked to his period of active service. STRs show no complaints, treatment, or diagnosis for headache disorder during active service. Although the Veteran reported on his November 1993 service separation examination a history of frequent or severe headaches, clinical evaluation showed normal neurological system. Numerous lay statements addressing the Veteran’s health conditions reflect no mention of the Veteran having headaches in service or afterwards. VA treatment records are silent as to any complaints, treatment, or diagnosis for headache disorder. VA received an original claim for disability compensation in December 1996, but the Veteran did not report having any headache disability due to active service. In August 2013, a decade after service separation, VA received the Veteran’s claim for service connection for headache disability. A July 2016 VA examination report reflects a diagnosis of mild tension headaches. The examiner opined that it was less likely than not related to service. The examiner found that the Veteran’s STRs did not show complaints, treatments, or diagnoses of headaches in service. The examiner noted that the Veteran’s separation examination mentioned frequent headaches, but that VA medical records since December 2001 showed no complaints, treatment, or diagnosis of headaches. It was noted that, although the Veteran claims he experiences constant headaches, he did not require prescription for headache pain. Based on a review of the record including the Veteran’s medical history, the examiner determined that it is less likely than not that the current diagnosis for chronic mild tension headache condition is related to the Veteran’s active service. The examiner explained that his conclusions were supported by STRs showing that headaches were not a significant problem at the time of discharge notwithstanding his history given the normal exam and absence of comment by the examiner at that time; and by the Veteran’s own statements—specifically the Veteran’s report that headache problems had not ever limited his ability to function in service or for ten years after service. Given this, the examiner reasoned that the headache condition appeared to only limit the Veteran’s ability to function when he became a welder after service. The Board accepts that the Veteran is competent to report his symptoms and onset. However, the evidence shows no indication of chronic headache problems beginning in service and persisting since service; or that the Veteran’s currently diagnosed headache disorder is related to his headache symptoms, which were reported at service separation. The Veteran is not competent to opine that his current condition is etiologically related to service as he lacks the requisite medical expertise and training, coupled with the absence of ongoing symptoms since service. The etiology of chronic headaches is a complex medical question beyond the ken of laypersons. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). Therefore, the Veteran’s medical opinion linking his current headache condition to service has no probative value. The Board assigns greater probative value to the negative July 2016 VA medical opinion as this was prepared by a skill, neutral medical professional after examining the Veteran and reviewing the claims file. Also, the conclusion reached is supported by a complete rationale. The Veteran has not provided a favorable medical opinion to weigh in this matter. 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). 3. Whether new and material evidence has been submitted to reopen the previously denied claim for PTSD. A July 2014 rating decision denied the claim of entitlement to service connection for PTSD. VA notified the Veteran of that decision and how to appeal. VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. Therefore, the decision became final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. Evidentiary submissions received since the July 2014 rating decision include an April 2015 VA examination report showing that, while the Veteran does not have PTSD, he has a diagnosis for major depression. It is noted that a May 1997 rating decision denied service connection for night sweats, mood swings, and excessive fatigue. The Board finds that the evidence is new and material as it triggers VA’s duty to assist when the evidence is considering in light of Clemmons v. Shinseki, 23 Vet. App. 1 (2009), which held that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Accordingly, the petition to reopen the previously denied claim is granted. The matter henceforth is characterized more broadly as entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to service connection for PTSD. The Veteran believes he has PTSD related to his Gulf War service. He served in Desert Storm/Shield and Somalia. The Board concludes that the preponderance of the evidence is against service connection for PTSD as a confirmed diagnosis of PTSD related to an in-service stressor event in accordance with 38 C.F.R. § 4.125 is not shown. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). Generally, entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. §§ 4.125. An April 2015 VA PTSD examination reflects that the Veteran does not meet the DSM-V criteria for a diagnosis of PTSD. Although VA treatment records include assessment for PTSD, there is no indication that these finding were in accordance with the 38 C.F.R. § 4.125(a) and a positive PTSD screen is not the equivalent of a diagnosis that conforms to the DSM-V. The Board has considered the lay evidence indicating that the Veteran has mental problems due to PTSD. Lay persons can competently and credibly report their observations, and the Veteran his symptoms. However, the Board finds that lay evidence is not competent to support a diagnosis of PTSD as this diagnosis is not susceptible to lay observation. See Jandreau, supra. Therefore, to the extent that the lay evidence diagnoses the Veteran with PTSD, the Board finds the evidence has no probative value. Absent competent evidence of a confirmed diagnosis of PTSD in accordance with the 38 C.F.R. § 4.125(a), 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). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability (other than PTSD) is remanded. An April 2015 VA examination reflects that Veteran’s symptoms did not meet the criteria for PTSD. However, the examiner diagnosed the Veteran with major depression, but determined that it was less likely than not related to any incidents or events in service. Additional VA mental health inpatient discharge record from February 2016 lists two other psychiatric illnesses including adjustment disorder with disturbance of emotions and conduct. To ensure that VA has met its duty to assist the Veteran, the Board finds that remand is necessary to obtain a VA examination that addresses the etiology of any psychiatric disorders shown. It is noted that the Veteran’s STRs reflect a history of depression on his service separation examination although clinical evaluation was normal. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability (other than PTSD) to include major depression and adjustment disorder. The examiner must opine whether it is at least as likely as not related to service, to include history of depression, excessive worry, and frequent trouble sleeping noted on November 1993 service separation. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel