Citation Nr: 18161097 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-50 506 DATE: December 28, 2018 ORDER New and material evidence was not submitted; thus, the petition to reopen a claim for entitlement to service connection for hypertension is denied. New and material evidence was not submitted; thus, the petition to reopen a claim for entitlement to service connection for pes planus is denied. New and material evidence was not submitted; thus, the petition to reopen a claim for entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for a headache disorder is granted. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than November 18, 2014 for the award of service connection for tinnitus is denied. FINDINGS OF FACT 1. The December 2009 rating decision denying the Veteran’s claim of entitlement to service connection for hypertension is final; new and material evidence has not been received to reopen the claim. 2. The December 2009 rating decision denying the Veteran’s claim of entitlement to service connection for pes planus is final; new and material evidence has not been received to reopen the claim. 3. The December 2009 rating decision denying the Veteran’s claim of entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is final; new and material evidence has not been received to reopen the claim. 4. Erectile dysfunction is not etiologically related to active service. 5. The Veteran does not have a current diagnosis of PTSD. 6. The Veteran’s acquired psychiatric disorder, depressive disorder, is etiologically related to his active service. 7. The Veteran’s headache disorder is etiologically related to his active service. 8. The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus. 9. The date of November 18, 2014 is the earliest possible effective date for the award of service connection for tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of entitlement to service connection for hypertension is not reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. New and material evidence has not been received, and the claim of entitlement to service connection for pes planus is not reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. New and material evidence has not been received, and the claim of entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is not reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 5. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 6. The criteria for service connection for a headache disorder have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 7. The law precludes assignment of a disability rating greater than 10 percent for service-connected bilateral tinnitus. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.87, Diagnostic Code (DC) 6260 (2017). 8. The criteria for an effective date earlier than November 18, 2014 for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to November 1992. These matters were previously before the Board in July 2015, when the Board remanded them for the issuance of a statement of the case (SOC). Case law provides that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects current diagnoses of mental disorders other than posttraumatic stress disorder (PTSD), including depression. Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the psychiatric claim on appeal. New and Material Evidence Claims Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further held that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]” Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. 1. Hypertension The Veteran has claimed entitlement to service connection for hypertension. This claim was previously denied in a December 2009 rating decision, as there was no evidence that any claimed hypertension was in any way related to his active service, or any incidents therein. As the Veteran did not appeal this rating decision, it is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The evidence received since the December 2009 rating decision, which is the last final denial, includes VA treatment records, private treatment records, service treatment records (STRs), and service personnel records (SPRs). Notably, the Board has considered whether 38 C.F.R. § 3.156 (c) pertains to this claim. Subsection (c)(1) of the regulation demands 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.” 38 C.F.R. § 3.156 (c)(1) (2017). Here, the new records associated with the claims file consisted of STRs and SPRs. These documents are duplicative of documents which already existed in the Veteran’s claims file at the time of the December 2009 denial. The Board notes that the STRs and SPRs were considered in the December 2009 denial, which means that they were in the claims file at the time of the denial. The Board assumes that these STRs and SPRs simply were not scanned from the Veteran’s paper claims file into the Veteran’s electronic file until a later date. As such, VA did not have to reconsider the Veteran’s claim, as the official service department records had been associated with the claims file when VA first decided the claim. The evidence received since the prior final December 2009 rating decision also includes VA medical records. The VA medical records note the Veteran was not compliant with his therapy for hypertension but they do not contain an etiological opinion. See for example VA treatment records, February 17, 2016. Further, his private medical records do not mention hypertension. To the extent that the Veteran asserts that his condition is related to his active service, he made these assertions prior to the last final denial of this claim, thus, his statements are not new evidence. The new evidence does not contain any material evidence, as none of the evidence is sufficient to substantiate the claim. Accordingly, the Veteran has not submitted evidence sufficient to reopen his claim of entitlement to service connection for hypertension. The claim is denied. 2. Pes Planus The Veteran has claimed entitlement to service connection for pes planus (flat feet). This claim was previously denied in a December 2009 rating decision, as there was no evidence that any claimed pes planus condition was in any way related to his active service, or any incidents therein. As the Veteran did not appeal this decision, it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The evidence received since the December 2009 rating decision, which is the last final denial, includes VA treatment records, private treatment records, STRs, and SPRs. Notably, the Board has considered whether 38 C.F.R. § 3.156 (c) pertains to this claim. Subsection (c)(1) of the regulation demands 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.” 38 C.F.R. § 3.156 (c)(1) (2017). Here, the new records associated with the claims file consisted of STRs and SPRs. These documents are duplicative of documents which already existed in the Veteran’s claims file at the time of the December 2009 denial. The Board notes that the STRs and SPRs were mentioned in, and considered, in the December 2009 denial, which means that they were in the claims file at the time of the denial. The Board assumes that these STRs and SPRs simply were not scanned from the Veteran’s paper claims file into the Veteran’s electronic file until a later date. As such, VA did not have to reconsider the Veteran’s claim, as the official service department records had been associated with the claims file when VA first decided the claim. Also of record since the prior final December 2009 rating decision are VA medical records. The VA medical records do not speak to the etiology of the Veteran’s pes planus. His private medical records do not mention pes planus. To the extent that the Veteran asserts that his condition is related to his active service, he made these assertions prior to the last final denial of this claim, thus, his statements are not new evidence. The new evidence does not contain any material evidence, as none of the evidence is sufficient to substantiate the claim. Accordingly, the Veteran has not submitted evidence sufficient to reopen his claim of entitlement to service connection for pes planus. Accordingly, new and material evidence has not been received and the claim for pes planus is not reopened. 3. Peripheral Neuropathy The Veteran has claimed entitlement to service connection for peripheral neuropathy. This claim was previously denied in a December 2009 rating decision because he did not have a diagnosis of peripheral neuropathy, and there was no evidence that any claimed peripheral neuropathy was in any way related to his active service, or any incidents therein. As the Veteran did not appeal this decision, it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The evidence received since the December 2009 rating decision, which is the last final denial, includes VA treatment records, private treatment records, STRs, and SPRs. Notably, the Board has considered whether 38 C.F.R. § 3.156 (c) pertains to this claim. Subsection (c)(1) of the regulation demands 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.” 38 C.F.R. § 3.156 (c)(1) (2017). Here, the new records associated with the claims file consisted of STRs. These documents are duplicative of documents which already existed in the Veteran’s claims file at the time of the December 2009 denial. The Board notes that the STRs were mentioned in, and considered, in the December 2009 denial, which means that they were in the claims file at the time of the denial. The Board assumes that these STRs simply were not scanned from the Veteran’s paper claims file into the Veteran’s electronic file until a later date. As such, VA did not have to reconsider the Veteran’s claim, as the official service department records had been associated with the claims file when VA first decided the claim. The evidence received since the December 2009 rating decision, which is the last final denial, also includes VA medical records. The VA medical records do not show a diagnosis of peripheral neuropathy. The records show only that the Veteran experiences diabetic polyneuropathy, but that is a different condition from the one he is claiming. See VA treatment records, February 4, 2015. His private medical records do not mention peripheral neuropathy. To the extent that the Veteran asserts that he has this condition, he made these assertions prior to the last final denial of this claim, thus, his statements are not new evidence. The new evidence does not contain any material evidence, as none of the evidence is sufficient to substantiate the claim. Accordingly, the Veteran has not submitted evidence sufficient to reopen his claim of entitlement to service connection for peripheral neuropathy. Accordingly, new and material evidence has not been received and the claim for peripheral neuropathy is not reopened. Service Connection Claims To prevail on a direct service connection claim, 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 in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Additionally, service connection on a secondary basis is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). 4. Erectile Dysfunction The Veteran asserts that he experiences erectile dysfunction (ED) which is related to his active service. As the evidence shows the Veteran was diagnosed with ED in 2003, the first element of service connection (the requirement of a current disability) has been met. See VA treatment records, September 17, 2003. The question for the Board is whether the Veteran’s current diagnosis of ED is related to his active service. The Board finds that competent, credible, and probative evidence does not establish that ED is etiologically related to the Veteran’s active service. The Veteran’s STRs do not show any complaints related to erectile dysfunction, or any treatment for it. Following service, the medical treatment records show that he experienced ED since 2003. However, importantly, none of the VA or private treatment records provide any opinions as to the etiology of the Veteran’s ED, or any statements which would tie the Veteran’s ED to his active service. As such, the nexus element has not been met. There is no evidence to show that the Veteran’s ED is related to his active service. The Board recognizes that the Veteran asserts that his claimed ED is related to his active service. However, as a lay person, the Veteran is competent to report observable symptoms, such as experiencing ED. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. While the Veteran is competent to report having experienced symptoms of ED, he is not competent to provide a diagnosis in this case or determine that these symptoms are somehow related to his active service or any service-connected disabilities. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. The Board acknowledges that the Veteran has not been afforded a VA examination addressing his claimed ED and its relationship to his active service. No such examination is required, as the only evidence that the Veteran’s claimed disability is related to his military service are his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Accordingly, service connection for ED is not warranted because the Veteran has not satisfied the second and third requirements of service connection, i.e., an in-service incident and a nexus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 5. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder is related to his active service. The question for the Board is whether the Veteran has a current diagnosis of an acquired psychiatric disorder and, if so, if the disorder either began during active service. As for his claim for service connection for PTSD, the Board notes that service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2017); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board has carefully reviewed the extensive evidence but finds that service connection for PTSD is not warranted. In this regard, the Board points out that a key element in establishing service connection is to show that a veteran currently has a diagnosis of the disability for which service connection is sought. See 38 C.F.R. § 3.304. Although the Veteran presented statements as to the stressors he experienced during service, a crucial element of the claim to establish service connection for PTSD is not demonstrated. Here, the evidence of record does not show that he has met the requirements of a diagnosis of PTSD. Specifically, the VA and private treatment records do not show he has been diagnosed with or treated for PTSD at any point during the appeals period. Further, the June 2014 VA examination failed to provide a diagnosis of PTSD. The only evidence in support of the claim for PTSD are the Veteran’s own assertions that he suffers from PTSD as a result of his military service. Consequently, the Board affords more weight to the June 2014 VA examination because the examiner conducted a thorough mental examination of the Veteran and reviewed the available VA treatment records. Therefore, the Board finds the evidence does not show that PTSD has been diagnosed in accordance with 38 C.F.R. § 4.125, despite the Veteran’s contentions to the contrary during the appeal period. Since regulations require medical evidence diagnosing the claimed condition, the Veteran’s self-assessment is not competent 38 C.F.R. § 3.304. In this respect, a clinical professional has the greater skill. The Veteran’s self-report that he has PTSD related to service is not credible to establish a lay nexus to service. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (2006). As such, the Board concludes that there is no reliable and/or probative evidence showing that the Veteran has PTSD. In the absence of a diagnosis of PTSD, there can be no valid claim in this respect. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the Board finds that competent, credible, and probative evidence establishes that an acquired psychiatric disorder, diagnosed as depressive disorder, is related to the Veteran’s active service. The evidence reflects that the Veteran has a current diagnosis of unspecified depressive disorder. See VA treatment records, July 13, 2015. Thus, the first element of service connection, a current diagnosis, is met. As to the issue of in-service incurrence, the Veteran’s STRs do not show complaints or a diagnosis of an acquired psychiatric disorder. Turning to whether there is a medical nexus, a medical professional has stated that the Veteran’s diagnosed acquired psychiatric disorder is related to his active service. Private records, which include a June 2015 Disability Benefits Questionnaire (DBQ) signed by a private physician, opined that the Veteran’s depressive disorder more likely than not began in active service, continued uninterrupted until present time, and was aggravated by the Veteran’s in-service events, which included the conceded stressors. See Mental Disorders DBQ, June 4, 2015. Thus, the third element of service connection is met. As such, the Veteran’s claim of entitlement to service connection for depressive disorder is granted. 6. Headaches The Veteran asserts that he experiences a headache disorder as a result of his active service or, alternatively, due to or aggravated by his now service-connected depressive disorder, or other service connected disabilities. The question for the Board is whether the Veteran has a current diagnosis of a headache disorder and, if so, if the disorder either began during active service, or was caused or aggravated by the service-connected depressive disorder. The Board finds that competent, credible, and probative evidence establishes that a headache disorder was caused by his service-connected depressive disorder. The Veteran has a current diagnosis of a headache disorder. Thus, the first element of service connection is met. As to the issue of in-service incurrence, the Veteran’s STRs do not show ongoing complaints of, and treatment for, headaches. Turning to whether there is a medical nexus, a medical professional stated that the Veteran’s service connected tinnitus, obstructive sleep apnea, and depressive disorder caused his headache disorder. See Headaches DBQ, July 12, 2016. As such, the Veteran’s claim of entitlement to service connection for a headache disorder is granted. Increased Rating The Veteran seeks entitlement to a rating higher than the currently-assigned 10 percent for his tinnitus. Tinnitus is evaluated under 38 C.F.R. § 4.87, DC 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, note 2 (2017). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the Court determined that the “plain meaning” of 38 C.F.R. § 4.25 (b) and the pre-1999 and pre-2003 versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. The Federal Circuit; however, reversed the Court’s holding, concluding that the Court erred in not deferring to the VA’s interpretation of DC 6260, which is that a Veteran is entitled only to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); see also 38 U.S.C. § 7252 (b) (2012) [commanding that “the Court may not review the schedule of ratings for disabilities... or any action of the Secretary in adopting or revising the rating schedule”]; Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004) [holding that the Secretary’s discretion over the rating schedule is “insulated from judicial review,” with one recognized exception limited to constitutional challenges]. The clear import of the Federal Circuit’s holding is that regardless of the version of DC 6260 employed, the maximum schedular rating available for tinnitus is 10 percent. As there is no legal basis upon which to award a higher schedular rating for tinnitus, the Veteran’s appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board emphasizes that the Veteran is already in receipt of the maximum schedular evaluation for tinnitus, whether unilateral or bilateral, and that he cannot receive a higher schedular evaluation for his tinnitus. Earlier Effective Date The Veteran seeks an earlier effective date for his already service-connected tinnitus. He seeks entitlement to an effective date earlier than November 18, 2014 for the grant of service connection for tinnitus. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2017). In this case, VA medical records reflect that the Veteran underwent a VA audiological examination on April 22, 2015, which resulted in the diagnosis of tinnitus. The Veteran’s extensive medical records, both private and VA-generated, do not show a diagnosis or complaints of tinnitus prior to April 22, 2015. The Veteran filed his claim for service connection for this disability on November 18, 2014. There is no evidence in the claims file indication that he filed a claim of service connection for this disability prior to November 18, 2014. Indeed, neither the Veteran nor his attorney has not argued as such. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than November 18, 2014, for the grant of service connection for tinnitus. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b) (2017). T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel