Citation Nr: 18157574 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-36 594 DATE: December 13, 2018 ORDER The appeal to reopen a claim for service connection for a sleep disability is granted. The appeal to reopen a claim for service connection for a seizure disorder is granted. An earlier effective date for the grant of service connection for bilateral hearing loss is granted. An earlier effective date for the grant of service connection for tinnitus is granted. An increased disability rating greater than 30 percent for service-connected dysthymic disorder with polysubstance dependence, also claimed as posttraumatic stress disorder (PTSD), sleep disturbances, depression, and anxiety (i.e., acquired psychiatric disability), is granted. Service connection for diabetes mellitus, type 2, is denied. REMANDED Entitlement to an earlier effective date for the grant of service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to an earlier effective date for the grant of service connection for headaches is remanded. Entitlement to more than a 30 percent rating for service-connected headaches is remanded. Entitlement to a compensable rating for service-connected PFB is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for a disability manifested by seizure-like symptoms is remanded. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to more than a 10 percent rating for service-connected tinnitus is remanded. (The matter of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is addressed in a separate decision by another Acting Veterans Law Judge) FINDINGS OF FACT 1. A final March 2009 Board decision most recently denied the Veteran service connection for a sleep disability because there was no evidence that such disability was related to service; evidence received since that denial includes new VA treatment records and examination reports indicating the Veteran’s psychiatric problems also affect his sleep, raising a question of secondary service connection that has been previously considered in other VA denials (though, crucially, not by the prior final Board denial), but nonetheless gains new salience as updated medical evidence directly contradicts prior negative adjudicatory findings; thus, the new evidence relates to an unestablished fact necessary to substantiate the underlying claim of service connection and, considering the low threshold for reopening under Shade v. Shinseki, 24 Vet. App. 110 (2010), raises a reasonable possibility of doing so. 2. A final June 1998 rating decision most recently denied the Veteran service connection for a seizure disorder because there was no evidence that he actually had a seizure disorder; evidence received since that denial includes new VA treatment records noting a possible seizure disorder and raising the possibility that the Veteran actually has a non-seizure disorder that nonetheless manifests as recurrent seizure-like activity (which has crucially never been considered); relates to an unestablished fact necessary to substantiate the underlying claim of service connection; and, considering the low threshold for reopening under Shade v. Shinseki, 24 Vet. App. 110 (2010), raises a reasonable possibility of substantiating that claim. 3. A review of the record shows an application requesting service connection for several disabilities, including bilateral hearing loss, with an apparent receipt stamp of June 23, 2015 (i.e., the date of claim), three days prior to the assigned effective date of June 26, 2015 for such disability, and VA treatment records note hearing difficulties and impairment manifested (i.e., the date entitlement arose) well before that date. 4. A review of the record shows an application requesting service connection for several disabilities, including tinnitus, with a receipt stamp of June 23, 2015 (i.e., the date of claim), three days prior to the assigned effective date of June 26, 2015 for such disability, VA treatment records note hearing difficulties and impairment manifested well before that date, and the November 2015 VA examination report (upon which the grant of service connection relied) notes tinnitus consistently since service and describes such as a known symptoms associated with hearing loss (i.e., entitlement arose well before the date of claim). 5. The most recent psychiatric evaluation of record (a June 2017 private evaluation) based on a thorough review of the record and in-person examination reported that the Veteran’s psychiatric disability produced occupational and social impairment with deficiencies in most areas, but also specifically noted that the associated pathology included “near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively,” “gross impairment in thought processes or communication,” “persistent delusions or hallucinations,” “intermittent inability to perform activities of daily living,” “impaired impulse control (such as unprovoked irritability with periods of violence),” “psychotic moods,” “suicidal ideation about once or twice a month,” and other symptoms that “would likely cause him to be excessively sad, emotionally unstable, unmotivated, unproductive, worried, restless, fatigued, hypersensitive, easily aggravated over small things…unable to concentrate, [have] low energy levels, have obsessional negative thoughts and show lack of interest in work further exacerbated by changes in appetite”; considering the report reflects a familiarity with the record, robust review of the pertinent medical history and represents the most current clinical evaluation in this matter, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s service-connected psychiatric disability produces the kind of gross and persistent disability contemplated by the 100 percent schedular rating criteria. 6. Although the evidence shows the Veteran currently has diabetes mellitus, type 2, there is no actual allegation indicating why such disability should be service-connected; to that end, the Board specifically finds no evidence or allegation (1) suggesting the Veteran should be entitled to a presumption or substantive finding of herbicide exposure during service contemplated by 38 U.S.C. § 1116, (2) identifying an event, injury, or incident in service to which his current diabetes could otherwise be related, or (3) suggesting his diabetes is related to another service-connected disability; furthermore, the evidence shows his diabetes was first diagnosed circa September 2014, which is well beyond the presumptive period contemplated by 38 U.S.C. § 1112; therefore, there is no basis for service connection on a direct, secondary, or presumptive basis. CONCLUSIONS OF LAW 1. The criteria for reopening service connection for a sleep disability have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for reopening service connection for a seizure disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for an earlier effective date for the grant of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 4. The criteria for an earlier effective date for the grant of service connection for tinnitus have been met. 38 U.S.C. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 5. The criteria for a 100 percent rating for service-connected acquired psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130 (2017). 6. The criteria for service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1984 to October 1988. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2012, December 2015, and October 2016 rating decisions. For the reasons stated above, the Board is granting the appeals to reopen service connection for sleep and seizure disorders and the claims for earlier effective dates for awards of service connection for hearing loss and tinnitus, and a maximum schedular rating for service-connected psychiatric disability, obviating the need for further discussion of those matters. Thus, the substantive adjudication below will focus solely on the denial of service connection for diabetes mellitus. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on June 15, 2018. However, the appeal for the ¬¬¬¬¬¬¬instant claims has already been activated at the Board and is therefore not eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. Service Connection: Diabetes Mellitus, Type 2 VA’s duty to notify in this matter was satisfied by notice provided in accordance with the Veteran’s Fully Developed Claim process. The Veteran’s service treatment records (STRs) and pertinent postservice treatment records have been secured. He has not identified any pertinent evidence that remains outstanding. While he has not been afforded an examination in conjunction with this claim, the Board notes that, for reasons discussed further below, the evidence fails to establish basic threshold elements of service connection and, therefore, VA’s duty to provide such examinations under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) has not been triggered. Crucially, the Veteran has had ample opportunity to respond and has not alleged that any notice or development was less than adequate. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-1167 (Fed. Cir. 2004). In evaluating these requirements, VA must analyze all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). VA will presume that certain chronic diseases, to include diabetes mellitus, were incurred or aggravated in service if they are manifested to a compensable degree within a specified period of time postservice (one year for diabetes). 38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Diabetes may also be presumptively service connected if manifested in a Veteran exposed to herbicide agents, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such exposure is presumed for veterans with active service in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975). 38 U.S.C. § 1116 (f). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). At the outset, the Board concedes that the medical evidence of record reflects a current diagnosis for diabetes mellitus, type 2. VA treatment records clearly show he presented for treatment in September 2014 and received a diagnosis after clinicians found elevated blood sugar levels. Treatment notes during that time show he was informed of this and receiving education as it was “new” to him, indicating this was the initial diagnosis of such disease. Indeed, subsequent prescription lists indicate that blood sugar test strips were issued that same month, and the extensive medical records prior to that date are silent for any complaints, treatment, or diagnoses related to diabetes (including his service treatment records). Crucially, the Veteran has not provided any substantive allegation or theory of entitlement in this claim and STRs are silent for complaints, treatment, or diagnoses related to diabetes. Therefore, service connection on the basis that diabetes either began in service and persisted or is otherwise related to some event or injury in service is not warranted. Moreover, his enlistment examination is silent for any complaints, treatment, diagnosis, or history related to diabetes. Consequently, VA presumes he was sound upon entry (as far as diabetes is concerned) and service connection on the basis of aggravation during service is factually precluded. There is also no evidence or allegation suggesting his current diabetes might be secondary to other service-connected disabilities (i.e., psychiatric disability, migraine headaches, left ankle fracture residuals, tinnitus, left second metacarpal residuals, left thumb fracture residuals, right knee scar, hearing loss, or PFB) and, therefore, no basis for granting secondary service connection. What remains for consideration is whether service connection for diabetes might be presumptively warranted, regardless of the absence of explicit evidence tying it to service. Unfortunately, as explained above, presumptive service connection for diabetes in this case requires either that such disability was manifested to a compensable degree within the first post-service year (for purposes of the presumption for chronic diseases in 38 U.S.C. § 1112) or that there be evidence of qualifying herbicide agent exposure in service (for purposes of the herbicide-related presumption in 38 U.S.C. § 1116). Clearly, there is no evidence that the Veteran’s diabetes manifested within the first postservice year (as medical records show he was first diagnosed in 2014 and, in fact, that he consistently denied any history of diabetes prior to that). Moreover, the Veteran did not serve in the Republic of Vietnam during the Vietnam Era. In fact, the totality of his active service began over a decade after that period ended. Similarly, there is no evidence or allegation that the Veteran was otherwise exposed to herbicide agents in any other setting. Therefore, there is no basis for establishing direct or presumptive exposure to herbicides. In light of the above, the Board also finds no basis for awarding service connection for diabetes on a presumptive basis, either as a chronic disease under 38 U.S.C. § 1112 or as an herbicide-related disease under 38 U.S.C. § 1116. Considering the above, the Board finds the preponderance of the evidence is against the instant claim, the benefit of the doubt rule does not apply, and the appeal thereof must be denied. REASONS FOR REMAND 1. Entitlement to an earlier effective date for the grant of service connection for PFB, an earlier effective date for the grant of service connection for headaches, more than a 30 percent rating for service-connected headaches, and a compensable rating for service-connected PFB are remanded. A review of the record shows the Veteran filed a timely December 2016 notice of disagreement (NOD) appealing the effective dates and ratings assigned with the initial grants of service connection for PFB and headaches. As no statement of the case (SOC) has yet been issued, corrective action is required pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). 2. Entitlement to service connection for a sleep disability is remanded. The evidence shows the Veteran was diagnosed with obstructive sleep apnea by a Social Security Administration (SSA) examiner and there are notations of insomnia and psychiatric sleep disturbances throughout the record, including in the Veteran’s service treatment records. Notably, however, the specific nature and etiology of the Veteran’s sleep problems remain unclear (i.e., whether they are physiological, psychiatric, or both and, relatedly, if any psychiatric sleep disturbances warrant separate and distinct diagnosis from his already service-connected psychiatric disability, as well as whether any separately diagnosable sleep disability may be related to either notations of insomnia and sleep difficulty in service or his service-connected psychiatric disability). Therefore, remand for an examination is appropriate.   3. Entitlement to service connection for a disability manifested by seizure-like symptoms is remanded. A review of the record shows that VA has limited this claim in the past strictly to consideration of service connection for a seizure disorder, when it is rather clear that the Veteran’s intent was to claim service connection more broadly for the underlying pathology and symptoms reported rather than a seizure disorder, specifically. Therefore, the Board has broadened the scope of review for the reopened claim at hand and, consequently, finds a remand for examination appropriate to determine the precise nature and likely etiology of the documented seizure-like symptoms he experiences recurrently. 4. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. The Veteran’s last examination in conjunction with this appeal was conducted in 2015, approximately three years ago. As capturing an accurate and current disability picture is critical to properly rating the disability on appeal, a contemporaneous examination is needed. 5. Entitlement to more than a 10 percent rating for service-connected tinnitus is remanded. In addition to the reasons noted above for requiring a contemporaneous audiological examination, the Board also notes that the Veteran has continued his appeal for a higher rating for tinnitus despite already being rated at the maximum schedular level. Thus, the Board finds it also appropriate to focus the pertinent portion of the audiological examination on the specific presentation of the Veteran’s tinnitus to determine whether it is productive of any symptoms or pathology not already contemplated by the schedular criteria and, if necessary, referring the matter for consideration of an extraschedular rating.   The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an examination by a sleep specialist or other appropriate doctor to determine the nature and etiology of any sleep disability entities found. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all sleep disability entities found, whether physiological, psychiatric, or otherwise. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include notations of sleep difficulties, insomnia, and conceded psychological stressors therein. (c.) For each disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his service-connected psychiatric disability (dysthymic disorder with polysubstance dependence). A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Schedule the Veteran for an examination by an appropriate physician (or multiple appropriate physicians) to determine the nature and etiology of any disability manifested by seizure-like symptoms found. Based on a review of the record, an examination of the Veteran (including a detailed account of the presentation, pathology, history, etc., associated with the claimed symptoms), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all disability entities manifested by recurrent seizure-like symptoms found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the notations of similar symptoms therein. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Then, arrange for the Veteran to be examined by an audiologist to determine the current severity of his service-connected hearing loss and tinnitus disabilities. Based on an examination (specifically including audiometric studies pursuant to 38 C.F.R. § 4.85), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in sufficient detail to allow for application of the pertinent rating criteria. The examiner is asked to specifically provide a detailed description of the presentation, symptoms, pathology, and impairment associated with the Veteran’s tinnitus, with an eye toward any presentation outside the normal or expected disability picture as contemplated by the schedular rating criteria. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Conduct any additional development deemed appropriate or indicated by the results of the above-ordered development (e.g., forwarding the Veteran’s file onward to VA’s Director, Compensation Service for initial consideration of an extraschedular rating for tinnitus) before readjudicating them. [CONTINUED ON NEXT PAGE] 6. Issue an appropriate SOC addressing the issues of entitlement to (1) an earlier effective date for the grant of service connection for PFB, (2) an earlier effective date for the grant of service connection for headaches, (3) a higher initial rating for service-connected PFB, and (4) a higher initial rating for service-connected headaches. The Veteran and his representative must be notified of the means and proper time window for perfecting those appeals and afforded the opportunity to do so. If they do, all perfected appeals must be returned to the Board for further appellate consideration. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel