Citation Nr: 18158362 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-10 637 DATE: December 14, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for Parkinson’s disease (PD) is granted. Entitlement to service connection for depression is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for PD is remanded. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. Entitlement to service connection for status post left nephrectomy, renal cell cancer (kidney cancer), is remanded. FINDINGS OF FACT 1. In a November 2010 rating decision, the RO denied the claim of service connection for PD; the Veteran filed a notice of disagreement to this determination in April 2011, the RO issued a statement of the case in December 2011 and the Veteran filed a substantive appeal in February 2012; however, the Veteran withdrew his appeal and the Board dismissed this issue in a December 2012 decision. 2. New evidence associated with the claims file since the withdrawn appeal relates to an unestablished fact necessary to substantiate the claim of service connection for PD and raises a reasonable possibility of substantiating the claim. 3. Although the Veteran has asserted having sleep apnea and depression due to service, the weight of the pertinent medical evidence indicates that he has not had such disabilities at any time during the appeal period. 4. The Veteran’s claimed tinnitus was not shown in service or for years thereafter; there is no credible evidence of continuity of tinnitus symptoms in and since service; and there is otherwise no competent lay or medical evidence that there exists a medical relationship, or nexus, between this claimed disability and service. CONCLUSIONS OF LAW 1. The December 2012 Board decision dismissing the claim of service connection for PD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. As additional evidence received since the last final adjudication decision is new and material, the criteria for reopening the claim of service connection for PD have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for disabilities, claimed as sleep apnea and depression, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for a tinnitus have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to December 1974. This appeal arises from April 2014 and November 2014 rating decisions. In the April 2014 rating decision, the RO denied service connection for tinnitus, sleep apnea, high blood pressure, and kidney cancer. Additionally, the petition to reopen a claim of service connection for PD was denied. In the November 2014 rating decision, the RO denied service connection for depression. The Board notes that, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence had been received to reopen a previously denied claim for service connection PD. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board notes that after the AOJ’s last adjudication of the claim and after certification of the appeal to the Board, the Veteran, through his attorney, submitted medical articles. Here, the Veteran’s substantive appeal was filed after February 2, 2013, in which the automatic waiver applies to evidence submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act); 38 C.F.R. § 20.1304 (2016). However, these articles do not pertain to the claims of service connection for sleep apnea, depression, or tinnitus. In addition, as discussed below, the Board has reopened the claim of service connection for PD. With regard to the remanded claims of service connection for high blood pressure, kidney cancer, and PD, the RO will have an opportunity to review the evidence on remand. Application to Reopen Service Connection for PD The Veteran’s claim of service connection for Parkinson’s disease was previously considered and denied in a November 2010 rating decision, because there was no evidence of a nexus between the disability and service. The Veteran perfected an appeal with respect to the claim. However, he then sought to withdraw such claim. The appeal was dismissed by the Board in a December 2012 decision. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 38 C.F.R. § 3.156 (a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that 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.” Id. The evidence of record at the time of the December 2012 Board decision that dismissed the claim of service connection for PD consisted of the Veteran’s service treatment records, military personnel records, Social Security Administration records, and a VA memo that indicates that ground samples from Wurtsmith Air Force Base detected trichloroethylene (TCE) in some of the drinking water wells. The Veteran filed his application to reopen service connection for PD in July 2013, which the RO denied in April 2014, the current rating on appeal. New evidence received since the December 2012 Board dismissal includes medical articles indicating that TCEs may cause PD and that case reports of PD have been associated with exposure to TCEs. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the November 2010 denial is new and material within the meaning of 38 C.F.R. § 3.156 (a), warranting reopening of service connection claim for PD. See Justus, 3 Vet. App. at 513 Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for PD have been met. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Andrea v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, to include tinnitus (organic disease of the nervous system), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Moreover, even if a disability is not subject to presumptive service connection, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). Finally, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Considering the evidence of record in light of the above-noted legal authority, the Board finds that service connection for sleep apnea, depression, and tinnitus is not warranted. The Veteran filed his claims of service connection for sleep apnea and tinnitus in July 2013 and for depression in August 2014. He offered no argument or evidence supporting his contention that service connection was warranted for these disabilities. STRs are silent for any complaints, findings or diagnoses related to sleep apnea, depression, or tinnitus. Indeed, those STRs do not note any problems sleeping, ringing in the ears, or depression, and the Veteran has not asserted that he experienced any such symptoms during active service. Notably, post-service treatment records associated with the Veteran’s claims file do not discuss any diagnosis or treatment for sleep apnea, depression, or tinnitus. In connection, the Board notes that the Veteran denied experiencing depression in 2008 to 2009 private treatment records. Here, the Veteran has not demonstrated, fundamentally, that he has, or at any time pertinent to this appeal has had, a disability manifested by sleep apnea or depression. No such diagnosis of such disorders is documented in the medical evidence of record. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also 38 C.F.R. § 3.303. Thus, where, as here, competent, probative evidence does not indicate that, fundamentally, the Veteran has-or, at any point pertinent to this appeal, has had-sleep apnea or depression for which service connection is sought, there can be no valid claim for service connection. With regard to the claim for tinnitus, it is a disability, which is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, the Veteran has not offered any contention as to continuity of tinnitus since service or any other argument as to why service connection is warranted for tinnitus, thus, the provisions of 38 C.F.R. § 3.303 (b) pertaining to establishing a medical nexus on the basis of continuity of symptoms, alone (in lieu of a medical opinion) is not available to him. Significantly, moreover, the service connection claim for tinnitus must fail in the absence of any evidence or argument showing either continuity of symptomatology or otherwise linking any currently claimed tinnitus to an in-service injury, disease, or event. Furthermore, to the extent that the Veteran’s filing of a general claims for service connection is construed as the Veteran claiming that he currently has any of the claimed disabilities as a result of his service, the Board points out that the matters of the diagnosis and etiology of the disabilities at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). The Veteran, as a layperson, is certainly competent to attest to matters within his own personal knowledge, such as those observed or experienced (see, e.g., Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005)), and may opine as etiology of some simple disabilities, such as those observable or otherwise perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring)). However, the matters of diagnosis and etiology of the medically complex disabilities, specifically sleep apnea and depression, here at issue is based on internal processes not observable to the human eye or otherwise perceived through the senses; hence, questions of diagnosis and etiology of such disabilities are only within the province of individuals with special knowledge, training, and experience. See Jandreau, 492 F.3d at 1377, n. 4 (Fed. Cir. 2007) (a layperson may be competent to attest to a broken leg, but not to diagnose cancer). As the Veteran is simply not shown to have such special knowledge, training, and experience, any such assertions in this regard would not be competent, and hence, not probative. Furthermore, on these facts, VA is not required to arrange for VA examination or to otherwise obtain a medical opinion on this claim. Generally, VA has a duty to provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board points out that the Veteran has merely filed claims of service connection and has offered no argument or evidence indicated why service connection is warranted, or any evidence that he was diagnosed with sleep apnea or depression, nor has the Veteran provided any indication of continued tinnitus symptomatology since service. These acts, alone, are not sufficient to trigger the duty to obtain an examination or to otherwise obtain any etiology opinion. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). For all the foregoing reasons, the Board finds that the claims of service connection for sleep apnea, depression, and tinnitus must each be denied. In reaching the conclusion to deny these claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible and probative evidence supports the required elements of these claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The Veteran asserts that his PD, hypertension, and kidney cancer were caused by his service. Specifically, he asserts that during his service on Wurtsmith Air Force Base, TCEs contaminated the on-base drinking water, and in turn, caused these disabilities. The Veteran submitted a report from the Environmental Protection Agency (EPA) indicating that the drinking water at this base was contaminated with TCEs in the 1970s, at the time the Veteran was stationed at the base. The Veteran’s attorney submitted several medical articles in October 2017 indicating that TCEs may cause PD, renal cancer, and high blood pressure. The Veteran also contends that his high blood pressure is secondary to PD. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Given the current assertions, current diagnoses of PD and hypertension, and the low threshold to trigger VA’s duty to provide an examination for these disabilities are met. McLendon, 20 Vet. App. at 83. Thus, VA examinations are warranted to obtain medication opinions as to the current nature and etiology of these disabilities. With regard to the claimed kidney cancer, the Board notes that a March 2014 VA physician opined that the Veteran’s kidney cancer was not related to the in-service kidney infections. However, the Board finds an addendum opinion is necessary to address the Veteran’s contention that his in-service TCE exposure at the Wurtsmith Air Force base caused his kidney cancer. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or to otherwise obtain an opinion when developing a service connection claim, it must provide or obtain one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo VA examination with regard to his claim for PD and hypertension by an appropriate physician. The entire, electronic claims file, to include a complete copy of the REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and review of all pertinent lay and medical evidence, the medical professional should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed PD and hypertension, currently present, or present at any point pertinent to the claims for these disabilities on appeal (even if currently asymptomatic or resolved), had its onset in service or is otherwise medically related to service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include, the Veteran’s contention that he was exposed to TCEs during his service at the Wurtsmith Air Force Base. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions as to nature, onset and continuity of symptoms, as well as VA memo discussing that drinking water at the Wurtsmith Air Force base was contaminated with TCEs during the 1970s and the medical articles submitted in October 2017 reflecting associations between TCEs and PD and hypertension. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. Arrange to obtain an addendum opinion from the examiner who provided the May 2014 opinion with regard to his kidney cancer. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion from another appropriate physician based on claims file review (if possible). Only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies, if conducted, should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on review of all pertinent lay and medical evidence, the medical professional should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s kidney cancer had its onset in service or is otherwise medically-related to service, or is/was otherwise medically related to an in-service injury, disease or event, to specifically include in-service kidney infections, prostatitis, and complaints of pain, as well as the Veteran’s contention that he was exposed to TCEs during his service at the Wurtsmith Air Force base. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions as to nature, onset and continuity of symptoms, as well as VA memo indicating that the drinking water at the Wurtsmith Air Force base was contaminated during the 1970s and the medical articles submitted in October 2017 reflecting associations between TCEs and kidney cancer. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell