Citation Nr: 18156816 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-13 589 DATE: December 11, 2018 ORDER New and material evidence has been received, and the claim of entitlement to service connection for a neck condition is reopened. New and material evidence has been received, and the claim of entitlement to service connection for a left shoulder condition is reopened. New and material evidence has been received, and the claim of entitlement to service connection for paranoid schizophrenia is reopened. The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is not reopened, and the appeal is denied. The claim of entitlement to service connection for a bilateral hearing loss disability is not reopened, and the appeal is denied. The claim of entitlement to service connection for tinnitus is not reopened, and the appeal is denied. Service connection for paranoid schizophrenia is granted. Service connection for a left forearm scar is denied. REMANDED Service connection for a neck condition is remanded. Service connection for a left shoulder condition is remanded. Service connection for obstructive sleep apnea is remanded. Service connection for hypertension is remanded. Entitlement to a rating in excess of 10 percent from September 6, 2012 and a compensable rating thereafter for traumatic brain injury (TBI), with migraine headaches, to include whether the reduction from 10 percent to 0 percent effective November 1, 2014 was proper, is remanded. FINDINGS OF FACT 1. The regional office (RO) previously denied the Veteran’s claim for entitlement to service connection for neck and left shoulder conditions in a July 2011 rating decision. 2. Evidence received since the July 2011 rating decision raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a neck condition. 3. Evidence received since the July 2011 rating decision raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left shoulder condition. 4. The RO previously denied the Veteran’s claim for entitlement to service connection for PTSD and paranoid schizophrenia in an unappealed August 2013 rating decision. 5. Evidence received since the August 2013 rating decision raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for paranoid schizophrenia. 6. Evidence received since the August 2013 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for PTSD. 7. The RO previously denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and tinnitus in an unappealed August 2010 rating decision. 8. Evidence received since the August 2010 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 9. Evidence received since the August 2010 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for tinnitus. 10. The record does not contain clear and unmistakable evidence demonstrating that the Veteran’s paranoid schizophrenia was not aggravated during his period of active duty service. 11. The medical evidence of record favors a finding that the Veteran’s paranoid schizophrenia was incurred during his period of active duty service. 12. The evidence does not demonstrate that the Veteran currently has, or had at any time during the appeal period, a scar on the left forearm. CONCLUSIONS OF LAW 1. The July 2011 rating decision denying the Veteran’s claims for service connection for neck and left shoulder conditions is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the service-connection claim for a neck condition has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence sufficient to reopen the service-connection claim for a neck condition has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 4. The August 2013 rating decision denying the Veteran’s claims for service connection for PTSD and paranoid schizophrenia is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 20.1103 (2018). 5. New and material evidence sufficient to reopen the service-connection claim for paranoid schizophrenia has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 6. Evidence submitted to reopen the claim of entitlement to service connection for PTSD is not new and material evidence, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156(a) (2018). 7. The August 2010 rating decision denying the Veteran’s claims for service connection for a bilateral hearing loss disability and tinnitus is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 20.1103 (2018). 8. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral hearing loss disability is not new and material evidence, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156(a) (2018). 9. Evidence submitted to reopen the claim of entitlement to service connection for tinnitus is not new and material evidence, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156(a) (2018). 10. The statutory presumption of soundness upon entry into active duty service in April 1982 has not been rebutted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (2018); VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 11. The criteria for service connection for paranoid schizophrenia on a direct basis have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 12. The criteria for entitlement to service connection for a left forearm scar are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1982 to July 1984. The issue of entitlement to an earlier effective date for the grant of service connection for TBI with migraine headaches has been raised by the record in a September 2018 statement from the Veteran’s attorney, but has not been adjudicated by the AOJ. Thus, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include informing the Veteran and his attorney that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150; 19.9(b). The Veteran’s attorney has also filed a motion for reconsideration of a June 1987 Board decision on the basis of clear and unmistakable error (CUE). This will be addressed by the Board in a future determination. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became 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 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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (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). A. Left Shoulder Disability / Neck Disability The RO last denied the Veteran’s claims of entitlement to service connection for neck and left shoulder disabilities in a July 2011 rating decision. The Veteran submitted a notice of disagreement to that rating decision, but did not file a substantive appeal after the issuance of a March 2013 statement of the case. Accordingly, the July 2011 rating decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156(b), 20.1103. The RO denied the Veteran’s claim for a left shoulder condition on the basis that a December 2010 VA examination did not show the presence of any left shoulder disability. The RO denied the claim for a neck condition on the basis that there was no nexus to service. The evidence received since the July 2011 rating decision includes lay statements from the Veteran and VA treatment records showing that the Veteran continues to complain of neck and left shoulder pain, as well as the results of a February 2013 VA cervical spine examination and an April 2013 report of hospitalization for cervical myelopathy. The Board finds that such evidence is new because it was not before the RO at the time of the July 2011 rating decision. This evidence is also material because, when considered with the previous evidence of record, it relates to unestablished facts necessary to substantiate the claims of service connection for a neck condition and a left shoulder condition. Specifically, the February 2013 VA examination report showed a diagnosis of cervical spinal stenosis, a diagnosis that was not of record at the time of the July 2011 denial. The Board finds that such evidence is new, material, and serves to reopen the claim. To this extent only, the appeal is granted. As to the Veteran’s claimed left shoulder disability, while the RO has denied the claim on the basis of no current disability, the Veteran, in February 2013, sought VA emergency treatment for pain in his shoulders that he said caused frequent falls. Pain without a diagnosis may constitute a disability for VA purposes if that pain causes functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran’s statements evince left shoulder pain that may cause overall functional impairment. The bar to reopening a claim for new and material evidence is low, and the Veteran’s statements regarding shoulder pain meet that threshold. Therefore, such evidence is new and material, and the claim for service connection for a left shoulder disability is reopened. B. Paranoid Schizophrenia In an August 2013 rating decision, the RO reopened and denied on the merits the Veteran’s claim for service connection for paranoid schizophrenia, on the grounds that the condition, which has previously been found to have existed prior to service, was not permanently worsened as a result of service. Evidence received since the August 2013 rating decision includes, in pertinent part, lay statements from the Veteran’s sisters, who described how the Veteran’s schizophrenia was much worse than it had ever been when he returned from service. New evidence also includes a November 2017 Disability Benefits Questionnaire (DBQ) completed by Dr. R.W., who opined that the Veteran’s schizophrenia both pre-existed and was permanently aggravated by service. This evidence is new, in that it was not previously of record at the time of the August 2013 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. The claim for paranoid schizophrenia is reopened. C. PTSD The RO last denied the Veteran’s claim of entitlement to service connection for PTSD in an August 2013 rating decision, on the basis that, while VA treatment records showed references to PTSD by history, that there was no confirmed diagnosis of PTSD which would permit a finding of service connection. The evidence received since the August 2013 rating decision includes lay statements and VA treatment records showing that the Veteran has continued psychiatric treatment. However, he has not submitted any evidence showing a confirmed diagnosis of PTSD. Indeed, most recently, a July 2018 VA treatment record shows a diagnosis of paranoid schizophrenia, but no diagnosis of PTSD. While some of the evidence is new, the new evidence of record does not serve to show a diagnosis of PTSD. The Veteran’s assertions cannot be considered new and material evidence as they mirror the assertions that were in front of the RO at the time of the August 2013 rating decision. Accordingly, the claim of entitlement to service connection for PTSD is not reopened, and the appeal is denied. D. Bilateral Hearing Loss/Tinnitus The RO last denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus in an August 2010 rating decision. At that time, the pertinent evidence of record included the Veteran’s service treatment records, which did not show any complaints of or diagnoses for bilateral hearing loss or tinnitus, and the results of an August 2010 VA examination, which showed the presence of a bilateral hearing loss disability for VA purposes and the Veteran’s reports of his hearing loss and tinnitus, as well as negative nexus statements. In the August 2010 rating decision, the RO denied service connection for both a bilateral hearing loss disability and tinnitus on the basis that there was no nexus to service. The evidence received since the August 2010 rating decision includes lay statements from the Veteran and VA treatment records showing that the Veteran utilizes hearing aids. While the evidence is new, the new evidence of record does not show a nexus between the Veteran’s current hearing loss or tinnitus and service. There has been no additional nexus evidence submitted by the Veteran to support his claims. His assertions cannot be considered new and material evidence as they mirror the assertions that were before the RO at the time of the August 2010 rating decision. Thus, as the evidence submitted since the August 2010 rating decision is not new and material evidence, the claims for service connection for bilateral hearing loss and tinnitus are not reopened. 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. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Service connection for paranoid schizophrenia. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When an entrance examination has been conducted and is unavailable, the veteran is presumed sound. Quirin v. Shinseki, 22 Vet. App. 390 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a Veteran’s entrance examination has been lost or destroyed while in VA custody)). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA’s General Counsel noted that “[u]nder the language of [38 U.S.C. § 1111], VA’s burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service.” Crucially, if the presumption of sound condition is rebutted, “then the Veteran is not entitled to service-connected benefits.” Wagner, 370 F.3d at 1096. “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Here, the Veteran’s February 26, 1982 Report of Medical Examination and Report of Medical History are on file. Both were unremarkable, and the Veteran was provided a “normal” clinical psychiatric evaluation. Consequently, the presumption of soundness attaches. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the Veteran’s psychiatric condition existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003; Wagner, 370 F.3d at 1089. If VA is unable to rebut the presumption of soundness; then the claim becomes one for service connection based on incurrence of disability in service. Here, the Board finds the November 2017 opinion authored by Dr. R.W. to be the most probative evidence of record. Dr. R.W. reviewed the Veteran’s statements, service treatment records, and post-service treatment records. He conceded that the Veteran’s schizophrenia existed prior to service, but opined that the condition was certainly aggravated beyond its normal progression in the military. In this regard, Dr. R.W. stated that it was arguably difficult to differentiate whether the Veteran’s pre-service paranoid delusions, hallucinations, and mood disturbances were substance-induced or real symptoms of schizophrenia. Once in service, Dr. R.W. noted, the Veteran’s schizophrenia began to deteriorate. He entered a drug rehabilitation program in service in 1983, where he remained abstinent, but continued to symptomatically decline. Symptoms included apathy; anhedonia and lethargy; absent, blunted or incongruous emotional responses; reductions in speech; social withdrawal; impaired attention; intimacy and sexual problems; persistent and paranoid delusions; tactile and visual hallucinations; major mood disturbances; suicidal ideation; chronic sleep impairment; and social, relationship and work dysfunction. The Veteran was ultimately discharged from service due to his schizophrenia. Given the foregoing, and based on Dr. R.W.’s opinion, the Board finds that even if it is clear and unmistakable that the Veteran’s schizophrenia pre-existed service, it is not clear and unmistakable that it was not aggravated by service. Thus, the Board finds that the presumption of soundness upon entry to service has not been rebutted, and the Veteran’s claim must be treated as a claim for service connection on a direct basis. As noted above, the November 2017 doctor opined that, based on the evidence of record, the Veteran’s schizophrenia symptomatically declined once he entered a drug rehabilitation program in service in 1983. Dr. R.W. reported that his negative symptoms far outweighed his positive symptoms. Thus, based on the fact that the Veteran is presumed to have entered service in sound condition, that he was diagnosed with, and received treatment in service for paranoid schizophrenia, that the November 2017 letter from Dr. R.W. indicated that the Veteran’s condition worsened in service, the Board finds that the Veteran’s current paranoid schizophrenia was indeed service-incurred. Service connection is granted. 2. Service connection for a left forearm scar. The Veteran claims that he has a scar on his left forearm resulting from falling and injuring his shoulder in service. See May 2014 Notice of Disagreement. Service treatment records show that the Veteran sustained a left shoulder injury in service in June 1983 after falling into a ditch. An inpatient treatment record from that incident shows that the Veteran sustained a bruise on his left shoulder. The Veteran underwent a VA scars examination in February 2013. The examiner noted one well-healed scar on the Veteran’s left scalp, for which service connection has already been granted. No other scars were identified anywhere on the Veteran’s body. None of the Veteran’s VA or private treatment records since service show the presence of a left forearm scar. The threshold requirement for service connection is competent evidence of the current existence of the claimed disorder. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without evidence of a left forearm scar at any time during the period on appeal, service connection for a scar cannot be granted. The Board gives the most probative weight to the competent medical evidence, particularly the February 2013 VA examination report, which shows that no scar is present on the Veteran’s left forearm. For these reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a left forearm scar. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. REASONS FOR REMAND 1. Service connection for neck and left shoulder conditions. In this decision, the Board has reopened the Veteran’s claims for neck and left shoulder conditions. The Veteran was examined for his claimed neck condition in November 2008. The VA examiner offered a negative nexus opinion. Since that examination, the Veteran has received other neck diagnoses, to include cervical degenerative disc disease, cervical myelopathy, and cervical spinal stenosis. Given the Veteran’s various lay statements that he believes his neck condition to be related to a fall sustained in service in June 1983, the Board finds that he should undergo an additional VA examination to ascertain whether any of the Veteran’s currently diagnosed neck conditions are related to service, to include his documented fall. As the Veteran has asserted that his left shoulder condition stems from his neck condition, the Board will also remand for a shoulder examination. 2. Service connection for obstructive sleep apnea. In this decision, the Board has granted the Veteran’s claim of service connection for paranoid schizophrenia. Insofar as the Veteran has contended that his obstructive sleep apnea is secondary to his psychiatric disorder, see September 2018 Appellate Brief, which is now service-connected, the Board finds that he should undergo a VA sleep apnea examination. 3. Service connection for hypertension. The Veteran asserts that his diagnosed hypertension is due to service. The Veteran was afforded a VA examination for his claimed hypertension in September 2017. The examiner opined that hypertension was less likely than not due to service because of the absence of documented symptoms, evaluation, diagnosis, or treatment during service. The examiner did not specifically address the documented instance of heightened blood pressure in service in November 1983. Accordingly, the Board will remand for an addendum opinion. 4. Entitlement to a compensable rating for traumatic brain injury (TBI), with migraine headaches, to include whether the reduction from 10 percent to 0 percent effective November 1, 2014 was proper. In connection with his claim for increase in January 2014, the Veteran was afforded a VA TBI examination in March 2014. On account of that examination, the Veteran’s rating was reduced from 10 percent to 0 percent, effective November 1, 2014. He underwent a subsequent VA examination in September 2017, however that examination only covered the Veteran’s headaches. Thus, his last TBI examination was in March 2014. As the Veteran has alleged a worsening of symptoms since March 2014, the Board finds that he should be scheduled for a new VA examination that encompasses both his TBI and migraine symptoms. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify, submit or authorize VA to obtain any VA or private treatment records not already on file that he believes are pertinent to his appeal. 2. Schedule the Veteran for VA examinations to address the nature and etiology of his neck and left shoulder condition(s). Any and all studies and tests and any appropriate imaging should be performed. The examiner should take a history from the Veteran as to the progression of the claimed disabilities. After review of the file, interview and examination of the Veteran, the examiner is asked to address the following: (a.) Identify all neck and left shoulder disabilities. The examiner should note that the Veteran has been diagnosed, at times, with cervical myelopathy, cervical spinal stenosis, and cervical degenerative disc disease. If current diagnoses conflict with prior diagnoses, the examiner should reconcile the findings to the extent possible. If no diagnosis is shown for either the neck or the left shoulder, the examiner must still consider pain manifesting in functional impairment as a disability for VA purposes. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any neck disability had onset in, or is otherwise related to the Veteran’s military service, to include the Veteran’s June 1983 fall into a ditch. (c.) Upon examination of the cervical spine, the examiner should identify any neurological impairment associated with the neck disability, if present. If it is at least as likely as not that associated neurological impairment exists, the examiner should assess the severity of that impairment. (d.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability had onset in, or is otherwise related to the Veteran’s military service, to include the Veteran’s June 1983 fall into a ditch. (e.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability has been caused or aggravated beyond its normal progression by the Veteran’s neck condition. 3. Schedule the Veteran for an appropriate VA examination to address the etiology of his obstructive sleep apnea. Any clinically indicated testing should be performed. The examiner should take a history from the Veteran as to the progression of his sleep apnea disability. The examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea has been caused or aggravated beyond its natural progression by his service-connected paranoid schizophrenia. 4. Obtain a supplemental VA medical opinion regarding the Veteran’s claim for service connection for hypertension. Following a complete review of the file, the examiner is asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related to, or had its onset during, military service. The examiner must address the significance, if any, of the documented instance of heightened blood pressure in November 1983. 5. Schedule the Veteran for an appropriate VA examination to assess the current nature and severity of his TBI with migraine headaches, to include on a retrospective basis. Any clinically indicated testing should be performed. In addressing the nature and severity of all current and past manifestations of the Veteran’s service-connected TBI and migraines, the examiner should take into consideration all evidence of record, to include any medical records, lay statements, accepted medical principles, and objective medical findings. All examination findings, along with a complete rationale for any opinion offered, must be provided. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel