Citation Nr: 18160269 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-36 587 DATE: December 26, 2018 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for diabetes is denied. Entitlement to service connection for a nerve disorder is denied. Entitlement to a rating in excess of 50 percent for PTSD is denied. New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back disorder began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that tinnitus began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that hypertension began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that erectile dysfunction began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that diabetes mellitus began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that a nerve disorder began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 7. The Veteran’s PTSD has not manifested occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 8. In an unappealed March 2013 decision, the RO denied the Veteran’s claim of entitlement to service connection for sleep apnea. 9. Evidence received since the March 2013 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim of service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 6. The criteria for service connection for a chronic neurological disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 7. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 8. The March 2013 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 9. New and material evidence sufficient to reopen the Veteran’s claim of service connection for sleep apnea has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for a back disorder, tinnitus, hypertension, erectile dysfunction, diabetes, and a nerve disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (such as hypertension, diabetes mellitus, peripheral neuropathy, and tinnitus) will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Review of VA treatment records shows diagnoses of spinal stenosis, hypertension, erectile dysfunction, diabetes mellitus, and neuropathy. The Veteran’s report of tinnitus in and of itself establishes a diagnosis of that disorder. See February 2015 and September 2018 CAPRI Records. Element (1) of Shedden is met. With respect to elements (2) and (3) of Shedden, i.e., an in-service injury or disease, the Veteran’s service treatment records are silent for complaints, treatment, or diagnosis of a back disorder, tinnitus, hypertension, erectile dysfunction, diabetes, or a nerve disorder. There is likewise no evidence that hypertension, diabetes mellitus, tinnitus, or a chronic neurological disorder manifested within a year of his service discharge, which was January 1992. The diagnosis of spinal stenosis is shown in 2000, diabetes mellitus in 2000, peripheral neuropathy in 2002, and hypertension. The first report of tinnitus was in 2015, which was when the Veteran filed his claim for compensation. He not argued the contrary. Indeed, there is no evidence linking any of the preceding conditions to an in-service injury or disease. The Veteran neither asserts that the conditions had their onset in service or within a year of discharge and has not otherwise offered any evidence, lay or otherwise, to support his contention that these conditions are related to service. In the absence of any evidence of an in-service injury or disease relating to the Veteran’s claims, the service connection claims for a back disorder, tinnitus, hypertension, erectile dysfunction, diabetes, and a nerve disorder must be denied. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his back disorder, hypertension, erectile dysfunction, diabetes, and a nerve disorder; however, an examination is not warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s current conditions and his active service or service in the reserves. The only evidence of a possible connection between the Veteran’s disabilities and his service are the Veteran’s own broad and conclusory statements that the conditions are related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). As for his claimed tinnitus, the Veteran was scheduled for a VA examination in June 2015. He failed to appear for that examination and provided no good cause for doing so. In such cases, hen a claimant fails to report for a scheduled VA examination, without good cause, a compensation claim shall be rated based upon the evidence of record. 38 C.F.R. § 3.655. 2. Entitlement to a rating in excess of 50 percent for PTSD. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s PTSD is rated under Diagnostic Code 9411. Under that code, 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; gross 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; memory loss for names of close relatives, own occupation or own name. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. The Veteran is not entitled to a rating in excess of 50 percent for his PTSD. The record, including the April 2014 and July 2017 VA examinations, contains evidence of depressed mood, difficulty in adapting to stressful circumstances, and impaired abstract thinking. However, the Veteran has not displayed symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. The presence, or absence, of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. In this regard, the totality of the evidence fails to show that the symptoms of the Veteran psychiatric disability produce occupational and social impairment with deficiencies in most areas. Despite reporting feelings of depression and anxiety, the Veteran has maintained regular contact and relationships with family members. He is married and lives with his wife, two grandchildren, and a stepdaughter; he also has relationships with other children and grandchildren who visit him. The Veteran reported that he attends church. Though he is not working, he voluntarily retired from his work at a factory. Notwithstanding the notation of impaired abstract thinking in the April 2014 examination, the Veteran was found to have no significant cognitive impairment, indicating that his thinking is not so impaired as to be deficient. Such is supported by the July 2017 examination, which found normal thinking. The Veteran’s judgment has been intact throughout the appeal period. Further, the VA examiners did not find occupational and social impairment with deficiencies in most areas. Neither is the Veteran entitled to a 100 percent rating at any time during the appeal period. The Veteran has not had total social impairment. As previously stated, the Veteran has maintained regular contact with family members. He is married and has relationships with his spouse, children, and grandchildren. The absence of total social impairment precludes the possibility of a 100 percent rating. The Board notes the August 2016 disability benefits questionnaire (DBQ) completed by a private psychologist, which finds deficiencies in most areas. Notably, the DBQ was not based on an in-person examination. Given that the VA examiners had the benefit of observing the Veteran in person to evaluate his symptomology and make probative observations of his appearance and behavior, the Board affords greater weight to their findings than the August 2016 DBQ. Accordingly, the August 2016 DBQ cannot serve as the basis for a higher rating at any time during the appeal period. The Board acknowledges the Veteran’s assertion that he is entitled to an increased rating and his competent and credible lay statements describing his symptomology. Nevertheless, even considering these statements, the weight of the medical and lay evidence simply does not show occupational and social impairment with deficiencies in most areas or total social impairment. Moreover, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. 3. Whether new and material evidence has been received to reopen the claim of service connection for sleep apnea. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). A March 2013 rating decision denied service connection for sleep apnea on the basis that the Veteran failed to provide evidence of a nexus between his disability and service. The Veteran did not appeal the decision. The decision therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence added to the record since the March 2013 rating decision includes a January 2017 DBQ completed by a private physician which opines that the Veteran’s sleep apnea is caused and aggravated by his service-connected PTSD. The evidence is new, because it was not of record at the time of the rating decision. The evidence is also material, because it indicates a nexus between the Veteran’s sleep apnea and a service-connected disability. The evidence received is presumed credible, is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the Veteran’s claim. As such, the Veteran’s claim must be reopened. (REMAND NEXT PAGE) REASONS FOR REMAND 4. Entitlement to service connection for sleep apnea is remanded. Although the January 2017 DBQ provides a nexus opinion for secondary service connection, it is inadequate for adjudicative purposes. Specifically, the opinion’s rationale is unpersuasive. Dr. H.S. describes the Veteran’s PTSD symptoms and states that “individuals with psychological impairments are five times as likely to develop sleep-disordered breathing . . . .” Yet these statements fail to explain how the Veteran’s PTSD “causes and permanently aggravates” his sleep apnea based on the specific facts of this case. As such, the Veteran should be afforded an examination with opinion to determine the etiology of his sleep apnea. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that sleep apnea had its onset in service or is otherwise etiologically related to active service? b. Is it at least as likely as not (50 percent probability or greater) that sleep apnea was caused or aggravated (worsened) by the Veteran’s service-connected PTSD? Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel