Citation Nr: 18159307 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-04 090 DATE: December 18, 2018 ORDER Entitlement to service connection for exposure to ionizing radiation is denied. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is denied. New and material evidence to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus has been received, to this extent, the appeal is granted. New and material evidence has not been received that is sufficient to reopen the claims for service connection for diabetes mellitus and a low back disability; the claims are not reopened. REMANDED Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus. FINDINGS OF FACT 1. The Veteran did not participate in a radiation-risk activity during service. 2. There is no competent evidence the Veteran was otherwise exposed to ionizing radiation in service. 3. The preponderance of the evidence weighs against a finding that the Veteran has psychiatric disorder, including major depressive disorder and PTSD, at this time. 4. In a rating decision issued in June 2000, the RO denied the claim for service connection for bilateral hearing loss on the basis that there was no evidence that the Veteran had a hearing loss disability for VA purposes. 5. In an unappealed March 2001 decision, the Board denied the claims for service connection tinnitus and diabetes mellitus on the basis that no medical related tinnitus or diabetes mellitus to the Veteran’s service and determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for a low back disability. 6. An August 2008 RO confirmed and continued the prior denials of service connection for entitlement to service connection for tinnitus and diabetes mellitus and continued and confirmed the Board’s decision not to reopen the claim of entitlement to service connection for a low back disability. 7. In an August 2012 unappealed decision, the Board determined that new and material evidence had not been presented to reopen claims of entitlement to service connection for diabetes mellitus and tinnitus. 8. The evidence received since the June 2000 RO decision which denied a claim of entitlement to service connection for hearing loss, and August 2012 Board which determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for tinnitus, is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 9. The evidence received since the August 2008 RO, which continued and confirmed the Board’s decision not to reopen the claim of entitlement to service connection for a low back disability and August 2012 Board decision, that determined that new and material evidence had not been presented to reopen claims of entitlement to service connection for diabetes mellitus, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The criteria for service connection for exposure to ionizing radiation have not been met. 38 U.S.C.§§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311 (2018). 2. Criteria for entitlement to service connection for psychiatric disorder, to include depression, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). 3. The June 2000 RO decision that denied service connection for bilateral hearing loss; the August 2008 RO decision that confirmed and continued the prior denials of service connection for entitlement to service connection for tinnitus and diabetes mellitus and the Board’s decision not to reopen the claim of entitlement to service connection for a low back disability; and the August 2012 Board decision that determined that new and material evidence had not been presented to reopen claims of entitlement to service connection for diabetes mellitus and tinnitus, are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1100(a), 20.1103 (2018). 4. The evidence received subsequent to the August 2008 RO decision and August 2012 Board decision is not new and material, and the requirements to reopen the claims of entitlement to service connection for a low back disability and diabetes mellitus, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. New and material evidence has been received since the June 2000 RO denial of service connection for bilateral hearing loss and August 2012 Board decision that determined that new and material evidence had not been presented to reopen claims of entitlement to service connection for tinnitus, and those claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to June 1997, including periods of inactive and active duty training, and an initial period of active duty for training from September 1973 to January 1974. These matters are on appeal from December 2013, October 2014, and June 2015 rating decisions. The December 2013 rating decision denied service connection for PTSD. The October 2014 rating decision found that new and material evidence had not been received to reopen the claims of entitlement to service connection for diabetes mellitus, hearing loss, tinnitus, and a low back disability. The June 2015 rating decision denied service connection for major depression and found that new and material evidence had not been received to reopen claims of claims of entitlement to service connection for diabetes mellitus, hearing loss, tinnitus, and a low back disability. Exposure to Ionizing Radiation The Veteran seeks service connection for being exposed to ionizing radiation during his military service. See November 2014 statement. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be established if the evidence shows (1) that a veteran was exposed to ionizing radiation, and (2) the veteran has a “radiogenic disease” that is attributable to such exposure. See 38 C.F.R. § 3.311 (b). However, the Veteran’s claimed hearing loss, tinnitus, low back disability, diabetes mellitus, and psychiatric disorder do not constitute diseases specific to radiation-exposed veterans pursuant to the requirements of 38 C.F.R. § 3.309 (d) or a radiogenic disease pursuant to 38 C.F.R. § 3.311 (b)(2)(i). More importantly, the Veteran does not fit the definition of a radiation-exposed veteran under 38 C.F.R. § 3.309 (d). The Veteran did not participate in any of the enumerated radiation-risk activities delineated in 38 C.F.R. § 3.309 (d)(3)(ii). Therefore, the Veteran does not qualify for presumptive service connection as being a radiation-exposed veteran. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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). In addition, certain diseases, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as the Veteran has not been diagnosed with any psychoses at any time during the pendency of the appeal, continuity of symptomatology is simply not applicable in the present case. Finally, 38 U.S.C. § 1154 (a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran contends that he has a psychiatric disorder that is related to his service. As a preliminary matter, the Board notes that initially the Veteran’s STRs were unavailable. The Veteran was notified of the missing records in May 2010. The RO set forth its actions in a formal finding of unavailability dated September 2010. In October 2014, an incomplete copy of the Veteran’s STRs dated from June 1973 to July 1994 was provided to the Board. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The available STRs are void of any findings, complaints, symptoms, or diagnosis of any psychiatric disorder. The post-service medical records are void of any findings, complaint, symptoms, or diagnosis of any psychiatric disorder. On August 2015 VA mental disorders Disability Benefits Questionnaire (DBQ) examination, the examiner indicated that the Veteran had no mental disorder diagnosis. The examiner noted that a depressive disorder was noted in 2013 and the Veteran noted that he had an initial counseling session a week ago to talk about life in general. However, there was otherwise no history of group or individual psychotherapy or other psychological services. He stated that his primary care doctor told him that he may have depression and prescribed medication. He characterized his mood as normal most of the time with some variability due to life stressors. He denied any significant symptoms of depression in the past 2 weeks and stated that he last had depressive-type symptoms when recovering from foot surgery around April 2014. The examiner opined that based on the results of the examination, the Veteran did not meet DSM-5 diagnostic criteria for a depressive or other mood disorder at that time. There is a history of mood symptoms in the context of life stressors and medical illness, but at that time his symptoms were a subthreshold and not impairing. Significant depressed mood, sadness, and loss of interest were not noted. The staff psychologist was concerned with the cognitive and neuropsychological symptoms in relation to the Veteran’s history of stroke and recurrent TIA. She referred him for further examination. Pursuant to the August 2015 referral, on September 2015 VA examination for diagnostic clarification and opinion regarding capacity to manage funds for VA purposes, the examiner diagnosed mild major vascular neurocognitive disorder due to right thalamic infarct. The neuropsychologist opined that he was competent for VA purposes. A March 2016 physical residual functional capacity questionnaire prepared by a private provider identified depression and anxiety as psychological conditions affecting the Veteran’s physical condition. However, there is no indication that those diagnoses satisfy the diagnostic criteria for depressive or anxiety disorder. In this case, the weight of the evidence reflects that the Veteran had not had any diagnosed psychiatric disorder, at any point during the appeal period. On August 2015 VA examination, the staff psychologist acknowledged a complaint of depression and a diagnosis of depressive disorder in the VA treatment records. However, she opined that he did not meet DSM-5 diagnostic criteria for a depressive or other mood disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board has considered the Veteran’s contentions that he has a psychiatric disorder that is related to his service. The Board has also closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his claimed disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the existence of currently diagnosed psychiatric disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Given the foregoing, the Board finds that the medical evidence outweighs the Veteran’s contentions. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, and there is no doubt to be otherwise resolved. As such, this claim is denied. New and Material Evidence Claims A June 2000 rating decision denied service connection for bilateral hearing loss on the basis that the evidence did not show that the Veteran had a diagnosed hearing loss disability for VA purposes. In an August 2008 rating decision, the RO confirmed and continued prior denials of entitlement to service connection for tinnitus and diabetes mellitus and continued and confirmed the Board’s decision not to reopen the claim of entitlement to service connection for a low back disability. An August 2012 Board decision that determined that new and material evidence had not been presented to reopen claims of entitlement to service connection for diabetes mellitus and tinnitus. Although the RO declined to reopen the claims in a November 2016 Statement of the Case, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address whether new and material evidence has been received to reopen the claims for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.302, 20.1103 (2018). Since the Veteran did not timely appeal the June 2000 and August 2008 rating decisions or submit any additional evidence within one year of the rating decisions, and the Chairman of the Board did not order reconsideration of the Board’s August 2012 decision, those decisions became final. See 38 U.S.C. § §§ 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156, 20.302, 20.1100, 20.1103 (2018). The Veteran most recently submitted his application to have the previously denied claims reopened in June 2014. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New and material evidence is defined 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 Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element in order for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Veterans Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. The standard is low. However, it must be met to reopen the claim. Regarding the diabetes mellitus and low back disability claims, the pertinent evidence of record at the time of the August 2008 rating decision and August 2012 Board decision included partial STRs, private and VA treatment records, and a statement from the Veteran. It is important for the Veteran to understand that the sole unestablished fact necessary to substantiate the claims of service connection for diabetes mellitus and a low back disability is evidence relating these conditions to his active service. The evidence received since the August 2008 RO decision and August 2012 Board decision consists of additional STRs and service personnel records (SPRs), relevant June and August 2015 VA examinations, VA and private treatment records, a March 2016 physical residual functional capacity questionnaire, and lay statements from the Veteran. However, this newly received evidence does relate the Veteran’s diabetes mellitus or low back disability to his active service. The Board finds that, as the new evidence does not address any unestablished fact necessary to establish service connection for the claimed disabilities in a way that raises a reasonable possibility of substantiating the claims, but is cumulative and redundant of evidence already of record, the additional evidence is not new and material. Regarding the Veteran’s newly-submitted lay statements, the Veteran’s written assertion merely demonstrate the Veteran’s continued assertions that the claimed diabetes mellitus and low back disability is related to service. The Board finds that, as the new evidence does not address any unestablished fact necessary to establish service connection for the claimed disability in a way that raises a reasonable possibility of substantiating any claims, but is cumulative and redundant of evidence already of record, the additional evidence is not new or material. The Veteran is simply stating his claims once again without providing new and material evidence. Regarding the additional SPRs and STRs received after the August 2008 RO decision and August 2012 Board decision, the Board notes that VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156 (c). In this regard, the additional STRs and SPRs do not contain any information or evidence relevant to, or which would substantiate, the diabetes mellitus and low back disability claims (i.e., they do not show that the Veteran’s diabetes mellitus and low back disability is related to his service). Therefore, the STRs and SPRs are not deemed relevant to the claims on appeal and 38 C.F.R. § 3.156 (c) are not applicable to these claims. Regarding the June 2015 VA general medical DBQ and August 2015 VA back conditions DBQ examinations, the examiner diagnosed diabetes mellitus and degenerative arthritis of the spine, respectively, but neither examiner related either disability to the Veteran’s service. Accordingly, the Board finds that these examinations cannot be used as the basis for reopening the claims. Regarding the March 2016 physical residual functional capacity questionnaire, the private physician opined that it was unknown whether the Veteran’s diabetes mellitus and low back disability were incurred in or aggravated by his service. The Board finds this March 2016 questionnaire is adverse to the Veterans claims on appeal and such adverse evidence cannot be used as the basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (holding that evidence which is unfavorable to a claimant's case may not 'trigger a reopening' of the claim). In this regard, it is important for the Veteran to understand that even if the Board reopened the claims the “new” evidence (the VA examinations and physical residual functional capacity questionnaire) would only provide more highly probative evidence against these claims, providing more evidence against these claims beyond the evidence that existed in the prior rating action and Board decision. Reopening the claims at this point does not provide a basis for these claims to be granted based on this evidence. As a result, the Board finds that the newly received evidence does not relate to an unestablished fact necessary to substantiate the diabetes mellitus and low back claims on appeal, thus is not new and material and these claims are not reopened. 38 C.F.R. § 3.156 (a). The Board notes that the Veteran has been notified in writing of the reasons for the denial of service connection and for the reasons of the denial of his application to reopen. He has offered no additional information regarding the claims that would provide a reasonable basis for further development. Under these circumstances, the Board must conclude that new and material evidence to reopen the claims of entitlement to service connection for diabetes mellitus and a low back disability has not been received. As such, the RO’s August 2008 decision and the Board’s August 2012 decision remain final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). With regard to the claims for service connection for bilateral hearing loss and tinnitus, the evidence added to the record includes a March 2016 private medical record which indicates diagnoses of sensorineural hearing loss and tinnitus. The otolaryngologist opined that the Veteran’s hearing loss had been present for 26 years and noted the Veteran’s history of noise exposure (i.e. blast exposure) from serving as a demolition sergeant. He further opined that his history was compelling for service related hearing loss. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claims for service connection for bilateral hearing loss and tinnitus are reopened. REASONS FOR REMAND Bilateral hearing loss and tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus that are related to in-service noise exposure as a demolition sergeant. The SPRs indicate a military occupational specialty of demolition sergeant. On April 1999 VA audiology examination, the audiologist noted that the Veteran complained of constant bilateral tinnitus and the Veteran’s history of noise exposure in military. The audiologist diagnosed mild to severe sensorineural hearing loss. VA treatment records include a March 2009 VA audiology consultation during which the Veteran presented with a history of noise exposure to explosions during service in the National Guard and bilateral tinnitus. Bilateral hearing loss was diagnosed. On August 2015 VA hearing loss and tinnitus DBQ examination, the examiner diagnosed bilateral hearing loss and tinnitus. A March 2016 functional capacity questionnaire indicates diagnoses of sensorineural hearing loss and tinnitus. The private otolaryngologist opined that the Veteran’s hearing loss had been present for 26 years and noted the Veteran’s history of noise exposure (i.e. blast exposure) from serving as a demolition sergeant. He further opined that his history was compelling for service related hearing loss. However, it remains unclear whether the Veteran’s bilateral hearing loss and tinnitus are related to the Veteran’s period of active duty, active duty for training, and/or inactive duty training, on remand an additional examination and opinion to determine the nature and etiology of any currently diagnosed hearing loss and tinnitus. Prior to the adjudication of the claims, all periods of the Veteran’s service, including any period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) must be verified.] The matters are REMANDED for the following actions: 1. Verify the Veteran’s military service including all periods of active service, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). The specific dates-not retirement points-for all of the Veteran’s periods of ACDUTRA and INACDUTRA should be identified. All verified periods of service and responses received must be documented and associated with the claims file. 2. Schedule the Veteran for a VA examination which addresses the nature and etiology of his bilateral hearing loss and tinnitus. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner should be provided with the Veteran’s dates of active duty and specific dates of ACDUTRA and INACDUTRA. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that bilateral hearing loss and tinnitus had their onset in or are etiologically- related to any period of the Veteran’s active service, active duty training, or inactive duty training. The examiner should review and address the Veteran’s lay statements and complaints regarding his hearing loss and tinnitus, April 1999 VA audiology examination, March 2009 VA audiology consult, August 2015 VA hearing loss and tinnitus examination, and March 2016 functional capacity questionnaire. The reports of examination should include the complete rationale for all opinions expressed. (Continued on the next page)   The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel