Citation Nr: 18155740 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-14 487 DATE: December 6, 2018 ORDER The request to reopen the previously denied claim of entitlement to service connection for tinnitus is denied. The previously denied claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to disability rating in excess of 50 percent for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for tinnitus was denied in a November 2008 rating decision on the basis that there was no evidence of incurrence or aggravation of the condition in service. The Veteran did not appeal the decision within one year. 2. No evidence received since the November 2008 rating decision speaks to the reasons for the previous final denial. 3. A claim of entitlement to service connection for an acquired psychiatric disorder, claimed as intermittent explosive disorder with generalized anxiety disorder, anxiety, depression, and bipolar disorder was denied in a May 2009 rating decision on the basis that the Veteran had a preexisting condition which was not shown to have been aggravated beyond its natural progression in service. The Veteran did not appeal the decision within one year. 4. Evidence received since the May 2009 rating decision speaks to the reasons for the previous final denial and warrants reopening the Veteran’s claim for service connection. 5. Competent evidence diagnosed the Veteran as suffering from a psychiatric disorder that had its onset during or is otherwise related to the Veteran’s active service. 6. The Veteran’s sleep apnea did not manifest during active service and is not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim of entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, claimed as intermittent explosive disorder with generalized anxiety disorder, anxiety, depression, and bipolar disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from January 1992 through February 1995. The Veteran’s claim of service connection for a psychiatric disability has been re-characterized to reflect the various potential diagnoses of record that may pertain to his disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or the Secretary obtains in support of the claim). Claims to Reopen A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered “new” if it was not previously submitted to agency decision makers; “material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. 1. New and material evidence was not received to reopen the previously denied claim of entitlement to service connection for tinnitus. In this case, the Veteran was denied service connection for tinnitus in a November 2008 rating decision. This claim was denied on the basis that there was no evidence of incurrence or aggravation of the condition in service. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). While a condition of tinnitus is noted in the medical record, there is no evidence associated with the file thereafter that speaks to the condition existing during active service, being aggravated by service, or otherwise having any relationship to service. Neither the Veteran nor his attorney have submitted any argument with regards to this claim. As there is no new and material evidence submitted, reopening of the previously disallowed claim is not warranted. 38 C.F.R. § 3.156(a). 2. Whether new and material evidence was received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, claimed as intermittent explosive disorder with generalized anxiety disorder, anxiety, depression, and bipolar disorder In this case, the Veteran claimed service connection for “mental condition (bipolar)” in November 2007, and was denied service connection for intermittent explosive disorder with generalized anxiety disorder in a May 2009 rating decision following a VA examination. This claim was denied on the basis that the Veteran had a preexisting condition which was not shown to have been aggravated beyond its natural progression in service. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes a litany of mental health treatment records, both VA and private, including a June 2016 private psychological evaluation by Dr. J.N. This new evidence speaks to the nature and etiology of the Veteran’s psychiatric disability, and is thus material. The new evidence is considered to have a reasonable possibility of substantiating the claim, and as such, reopening of the claim is warranted. 38 C.F.R. § 3.156(a). Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 3. Entitlement to service connection for a psychiatric disorder is granted In support of his claim, the Veteran’s representative submitted a June 2016 private psychological examination. That examination diagnosed the Veteran as suffering from major depressive disorder. The private psychologist stated that the Veteran’s in-service psychiatric incidents are at least as likely as not related to incidents that occurred during his active service. That same psychologist specifically referenced earlier findings that the Veteran’s disability preexisted his active service, but found that the evidence did not clearly establish that fact. In light of the positive opinion, the Board finds the evidence for service connection is at least in equipoise; service connection for an acquired psychiatric disorder is therefore warranted. 4. The claim of entitlement to service connection for sleep apnea is denied. The Veteran filed his claim for service connection for sleep apnea in May 2012. Review of the service treatment records and separation examination does not show any complaints of or symptoms of sleep apnea. Review of the significant medical evidence associated with the file does not show any complaints of sleep apnea at any point until many years after the Veteran left active service. The Veteran’s sleep apnea appears to have been first diagnosed in a January 2011 VA treatment record, and did not appear on any problem list prior to that date. There is no objective or competent evidence that the claimed condition existed at any point in the 1990s. The absence of treatment or associated symptomatology for many years after separation from active service weighs against the claim generally, and indicates that the condition was not chronic since service. There is no competent and credible evidence associated with the file that indicates the condition may otherwise be linked to service. Under the circumstances, the Agency of Original Jurisdiction (AOJ) did not err by failing to provide a VA examination of this condition. 38 U.S.C. § 5103A(d). The claim of entitlement to service connection for sleep apnea must be denied as there is no evidence of any in-service incurrence nor is there a medical nexus between the claimed condition and service. 38 C.F.R. § 3.303. The evidence preponderates against the claim, and the benefit-of-doubt rule is inapplicable. 38 C.F.R. § 3.102. REASONS FOR REMAND 5. Entitlement to a disability rating in excess of 50 percent for migraine headaches is remanded. Since the time of the previous statement of the case, pertinent evidence has been obtained or created by VA without being reviewed by the Agency of Original Jurisdiction. A remand is required to allow for AOJ review of this evidence. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran seeks a TDIU as related to the claims on appeal. See November 2016 Notice of Disagreement. He has not limited the request to any disability. A request for TDIU, whether expressly raised by an appellant or reasonably raised by the record, is not generally a separate claim for benefits but rather an alternative to a schedular rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). However, the claim at hand is not clearly limited to evaluation of the migraine headache condition but may be related also to the claim for an acquired psychiatric condition. As the Board has now granted that claim, the Board finds it prudent to remand the Veteran’s claim for a TDIU in order that the RO may initially assign a disability rating and effective date for the Veteran’s psychiatric disorder and readjudicate the claim for a TDIU following that determination. The matters are REMANDED for the following action: Effectuate the grant of service connection for a psychiatric disorder. 1. After the development above has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issues on appeal. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel