Citation Nr: 18159442 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 13-16 485 DATE: December 19, 2018 ORDER New and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss. New and material evidence has not been received to reopen the claim for service connection for tinnitus. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. Entitlement to service connection for a heart condition is denied. Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service connected PTSD, is remanded. FINDINGS OF FACT 1. In an unappealed November 2006 Board decision, the Board denied service connection for bilateral hearing loss. 2. Evidence submitted since the November 2006 Board decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the claim of service connection for bilateral hearing loss. 3. In an unappealed January 2008 Board decision, the Board denied service connection for tinnitus. 4. Evidence submitted since the January 2008 Board decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the claim of service connection for tinnitus. 5. In an unappealed November 2006 Board decision, the Board denied service connection for sleep apnea. 6. The evidence received since the November 2006 Board decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 7. The evidence of record does not show a current diagnosis of a heart condition. 8. During the pendency of the appeal period, the Veteran’s PTSD with depression, anxiety, sleep disturbance, insomnia, irritability, anger episodes, and restlessness is manifested by at most occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The November 2006 Board decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 2. Since the November 2006 Board decision, new and material evidence has not been received, and the claim of entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The January 2008 Board decision denying service connection for tinnitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 4. Since the January 2008 Board decision, new and material evidence has not been received, and the claim of entitlement to service connection for tinnitus is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The November 2006 Board decision denying service connection for sleep apnea is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 6. Since the November 2006 Board decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for sleep apnea; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. The criteria for service connection for a heart condition have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 8. The criteria for a disability rating in excess of 50 percent for PTSD with depression, anxiety, sleep disturbance, insomnia, irritability, anger episodes, and restlessness have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that additional VA treatment records have been associated with the claims folder following the April 2013 statement of the case (SOC). However, the Board notes that these records are not pertinent to the issues of whether new and material evidence was received for the issues of service connection for hearing loss and tinnitus, or for the issue of service connection for a heart disability or an increased rating for PTSD. New and Material Evidence In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2018). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2018). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). 1. Whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. In November 2006 the Board denied service connection for bilateral hearing loss and in January 2008 the Board denied service connection for tinnitus. Bilateral hearing loss was denied on the basis that there was no hearing loss in service and no nexus and tinnitus was denied on the basis of no complaints of tinnitus in service. The Veteran did not appeal either the November 2006 or January 2008 Board decision. The decisions therefore became final. At the time of the November 2006 final Board decision for bilateral hearing loss, the record included the Veteran’s service treatment records, San Juan VAMC treatment records and a VA examination from December 2005. The Veteran’s service treatment records did not show any complaints of hearing loss or notations of bilateral hearing loss in service, and the December 2005 VA examination provided a negative nexus opinion. The San Juan VAMC records did not show any indication of bilateral hearing loss related to the Veteran’s service. At the time of the January 2008 Board decision which denied service connection for tinnitus the evidence of record included the Veteran’s claim, the December 2005 audiological examination and a January 2007 medical opinion that the Veteran’s tinnitus was not likely related to his in-service noise exposure. In September 2010 the Veteran applied to reopen his claims of entitlement to service connection for bilateral hearing loss and tinnitus. In order to reopen the previously denied claims, the evidence submitted since the last final denials (November 2006 for hearing loss and January 2008 for tinnitus) must be new and material. After a thorough review of the entire record the Board concludes that new and material evidence sufficient to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus has not been submitted. In the present case, the unestablished facts are whether the Veteran’s bilateral hearing loss was incurred in or caused by his service and whether he experienced tinnitus in service or as a result of his service. The associated post-service medical evidence and statements from the Veteran, while documenting the complaints of hearing loss and diagnoses of bilateral hearing loss and tinnitus, essentially are cumulative of the medical evidence and statements that were of record at the time of the previous Board decisions. In particular, the Veteran was afforded a VA examination in August 2011 for his hearing loss. At that examination hearing loss was diagnosed, but a negative opinion was provided regarding whether the Veteran’s current hearing loss is related to his active military service. See August 2011 VA examination report. With regard to tinnitus, the August 2011 examiner noted the Veteran’s complaints of tinnitus at the time of the examination, but found that he reported tinnitus for the past 30 years and not during service or immediately following discharge. Therefore the examiner found that tinnitus was less likely as not related to the Veteran’s noise exposure in service. Thereafter, the Veteran submitted private treatment records from Dr. Miranda which documented high frequency bilateral hearing loss. December 2014 private records from Dr. Zayas also indicated a diagnosis of bilateral hearing loss. There is no competent evidence which has been added to the record subsequent to the November 2006 and January 2008 decisions that the Veteran’s current bilateral hearing loss or tinnitus are due to his service. The Veteran already had diagnoses of bilateral hearing loss and tinnitus at the time of the Board denials in November 2006 and January 2008. Therefore, while “new,” these records associated are not material. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). In summary, the evidence added to the record is cumulative as to these claims. At the time of the prior decisions, there was no evidence of the Veteran’s bilateral hearing loss and tinnitus being related to service and there continues to be no evidence of their relationship to service. Accordingly, the Board finds that new and material evidence has not been submitted and the bilateral hearing loss and tinnitus claims are not reopened. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. The Board denied service connection for the Veteran’s sleep apnea in a November 2006 Board decision on the basis that there was no diagnosis of sleep apnea. The Veteran did not appeal this denial of service connection. The decision therefore became final. At the time of the final Board decision in November 2006, the record included the Veteran’s service treatment records, his statements, an October 2001 VA examination in which he was diagnosed with a breathing related sleep disorder and a December 2005 respiratory disease examination. In reviewing the evidence added to the claims folder since the November 2006 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran’s sleep apnea claim. Specifically, the medical evidence now documents a diagnosis of sleep apnea. See e.g. San Juan VAMC Outpatient treatment records from March 2009 to August 2011 showing diagnosis of sleep apnea. Also in March 2011 the Veteran was afforded a VA examination which reported a diagnosis of sleep apnea, although a negative nexus opinion existed indicating no etiological relationship between PTSD and sleep apnea. As indicated above, the Veteran’s previous claim for sleep apnea was denied because there was no evidence of a current sleep apnea diagnosis. As new evidence now indicates current sleep apnea, the Board finds that new evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for sleep apnea is reopened. 3. Entitlement to service connection for a heart condition. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The threshold question in any claim seeking service connection is whether the veteran, in fact, has the disability for which service connection is sought at any point during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. The Board notes that although the Veteran’s medical treatment records have shown examination of the heart, there is no indication of a diagnosis of a heart disability in the Veteran’s medical history. The Veteran was afforded private treatment in March 2009, at which point Dr. F.R. performed an echocardiogram of the Veteran’s heart. The impression of such report was all normal, with notation of some decreased left ventricle compliance. See March 2009 Dr. F.R. treatment record. In March 2011 the Veteran was afforded a VA examination for his heart. He reported suffering episodes of palpitation and that he has sought treatment by a private cardiologist who told him he was suffering from an enlarged heart. However, the Veteran reported that a nuclear study performed two years ago was found to be normal. The examiner noted that the Veteran was not on any current treatment for any heart condition and that there was no history of hospitalization or surgery, cardiac trauma or cardiac neoplasm. The examiner noted a history of angina, but found that the Veteran was not on any medication for such. The examiner specifically stated that there was no evidence of a heart condition upon his examination of the Veteran. Although the Veteran believes that he has a heart disorder, the other evidence of record outweighs the Veteran’s assertions. The Board assigns these findings, specifically the lack of a diagnosis, significant probative value. In light of these circumstances, the Board finds that service connection is not warranted for a heart condition. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2018). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 4. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD. The Veteran was granted service connection for PTSD in a February 2009 Board decision. Thereafter, the Veteran was rated at 10 percent effective April 6, 2001 and 30 percent was assigned from June 13, 2008 in a September 2009 rating decision. The notification letter was sent to the Veteran on September 15, 2009. On September 29, 2010 the Veteran submitted a claim for an increased rating, asserting that his PTSD has worsened since his last examination and perfected an appeal as to this issue. In an April 2013 rating decision the Veteran’s PTSD was increased from 30 to 50 percent effective his date of claim on September 29, 2010. The Board notes that as this does not constitute a full grant of benefits the Veteran’s increased rating claim is still on appeal. The Veteran’s PTSD is rated as 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. Id. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships. Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has received continued treatment for his service-connected PTSD at the San Juan VAMC from 2010 to 2014. This treatment shows symptoms consistent with his VA examination and submitted DBQ. In March 2011 the Veteran was afforded a VA examination for PTSD. At that examination the Veteran reported that he had been married since 1971, and that he had a good relationship with his wife. He noted that he retired after 22 years in 2006 after he was given a window for early retirement by the government and that now he spends most of the day at home reading the bible or visiting church twice a week. His reported hobbies were gardening, caring for his cars and driving his wife to the shopping center. He had no noted history of suicide attempts or violence and no issues with alcohol or substance abuse. Upon examination he was neatly groomed and appropriately dressed but tense, with attentive attitude and constricted affect. He had an anxious mood with unremarkable thought process. He had unremarkable thought content and no delusions. Reported PTSD symptoms were recurrent and intrusive distressing recollections of the event, including thoughts, images and perceptions. The examiner noted transient or mild decrease in work efficiency and the ability to perform occupational tasks only during periods of significant stress, without the inability to perform occupational tasks due to PTSD signs and symptoms. Thereafter, in April 2014 the Veteran submitted a DBQ performed by a VA psychiatrist from San Juan. That psychiatrist noted the Veteran’s diagnoses of PTSD and major depressive disorder, and found that they manifested in symptoms including restless sleep, irritability, sadness, poor motivation, poor tolerance to stress, nightmares and major depression. With regard to his occupational and social impairment, the psychiatrist selected that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement and thinking. The psychiatrist noted that the Veteran had no psychiatric hospitalizations, but had a history of instability, hostility, hypervigilance and issues of trust and self-esteem. He had no history of drug abuse. The Veteran experienced recurrent recollections of the event, distressing dreams of the event, efforts to avoid thoughts, feelings or conversations associated with the claimed event, difficulty falling asleep, irritability, difficulty concentrating, depressed mood, anxiety, memory loss, sleep impairment, impaired thinking, disturbances of motivation and mood, and difficulty adapting to stressful circumstances including work settings. The Veteran was noted to be capable of managing his financial affairs. Based on the foregoing, the Board finds that the Veteran is not entitled to a higher 70 percent disability rating for his PTSD. In this regard, the Board notes that the Court of Appeals for the Federal Circuit (Federal Circuit) held in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) that “in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Board acknowledges the medical evidence documenting the Veteran’s impaired impulse control and irritability, in addition to difficulty adapting to stressful circumstances which are criteria consistent with a 70 percent rating. However, the evidence indicates that during the period under consideration, the Veteran did no demonstrate symptoms such as a neglect of personal appearance and hygiene, near-continuous panic or depression, obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; and spatial disorientation. On the contrary, the March 2011 VA examination report as well as the April 2014 DBQ indicate that the Veteran’s hygiene was essentially normal, he did not endorse obsessional rituals which interfered with routine activities, his speech was within normal limits, and he was oriented during examinations. Moreover, the Board finds that an inability to establish and maintain effective relationships is not demonstrated during the period under consideration. While the Board acknowledges the Veteran’s report of difficulty managing interactions with others in the April 2014 DBQ, he reported that he has had a good relationship with his wife of over 40 years and he attended church. As such, while the Board acknowledges the Veteran’s social impairment, the evidence does not indicate an inability to establish and maintain effective relationships during the period under consideration. In light of the foregoing, the Board concludes that, while the Veteran demonstrates some of the criteria listed for a 70 percent disability rating, the evidence of record does not show that his overall level of severity more nearly approximates the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130 for the period on appeal. Therefore, an increased evaluation for PTSD in excess of 50 percent is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. Treatment reports from the San Juan VAMC from March 2009 through August 2011 show a diagnosis of hypertension that is well controlled and asymptomatic. The Veteran has not been afforded a VA examination for his claimed hypertension, as his service treatment records are silent for any complaints, treatment of or diagnosis of hypertension and no evidence of this condition manifesting within a year of discharge. However, as noted in Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The Board takes note of the Veteran’s Vietnam service in 1968 and therefore of his presumed herbicide exposure. Therefore, an examination and etiological opinion are warranted to determine whether the Veteran’s hypertension is related to his herbicide exposure. 2. Entitlement to service connection for sleep apnea is remanded. With regard to the claim for service connection for sleep apnea, remand is required for an adequate etiological opinion. First, where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran contends that he has sleep apnea that is related to service or is alternatively secondary to his service-connected PTSD. The Board notes that a March 2011 VA examiner opined that the Veteran’s sleep apnea was less likely than not caused by or related to his service connected PTSD. However, the examiner did not address whether PTSD aggravated the Veteran’s sleep apnea and also failed to provide an adequate rationale as to why the service-connected PTSD did not cause the current sleep apnea. Therefore, an addendum opinion is requested regarding whether the Veteran’s PTSD caused or aggravated his current sleep apnea. The matters are REMANDED for the following action: 1. Obtain all relevant VA treatment records since they were last associated with the claims file. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail. An explanation for all opinions expressed must be provided. The examiner should opine as to whether it is at least as likely as not that hypertension was caused by, or is otherwise etiologically related to, his presumed herbicide exposure. The examiner should consider the NAS conclusion that hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. (Continued on the next page)   3. After any additional records are associated with the claims file, obtain an addendum to the March 2011 VA opinion regarding the sleep apnea disorder. The entire claims file must be made available to and be reviewed by the examiner. If a new examination is necessary, it should be provided. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion, in light of previous examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was (a) caused or (b) aggravated by the service-connected PTSD. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel