Citation Nr: 19113167 Decision Date: 02/22/19 Archive Date: 02/22/19 DOCKET NO. 17-05 622A DATE: February 22, 2019 ORDER An effective date prior to May 30, 2014 for the grant of service connection for an acquired psychiatric disorder, characterized as posttraumatic-stress disorder (PTSD), is denied. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hearing loss is granted, and the claim is reopened. New and material evidence having not been received, the application to reopen the previously denied claims of entitlement to service connection for body weakness and aching, stomach pain, sleep problems, and alopecia is denied. Service connection for glaucoma is denied. Service connection for a sinus disorder, to include rhinitis, is denied. Service connection for a respiratory disorder, to include asthma is denied. Service connection for hypertension is denied. Service connection for headaches is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for a psychiatric disorder prior to December 7, 2016, and in excess of 50 percent thereafter, is remanded. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a left leg disorder, claimed as nerve damage, is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On May 30, 2014, the Veteran submitted an initial application for entitlement to service connection for a psychiatric disorder. 2. In a rating decision dated in January 2015, the Regional Office (RO) granted service connection for a psychiatric disorder, effective May 30, 2014, the date the Veteran’s claim was received. 3. In a February 2001 rating decision, the claim of entitlement to service connection for hearing loss was denied because he did not have a diagnosis of hearing loss for VA compensation purposes. 4. The evidence added to the record since the February 2001 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for hearing loss. 5. In an April 2010 Board decision, the claims of entitlement to service connection for body weakness and aching, stomach pain, sleep disorder, and alopecia were denied because these disorders were not incurred in, or otherwise related to service. 6. The evidence added to the record since the April 2010 Board decision does not relate to an unestablished fact that is necessary to substantiate the claims of service connection for body weakness and aching, stomach pain, sleep disorder, and alopecia. 7. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a sleep disorder for VA disability compensation purposes. 8. The Veteran’s glaucoma was not incurred in, or otherwise related to, active duty service. 9. The Veteran’s sinus disorder was not incurred in, or otherwise related to, active duty service. 10. The Veteran’s respiratory disorder was not incurred in, or otherwise related to, active duty service. 11. The Veteran’s hypertension was not incurred in, or otherwise related to, active duty service. 12. The Veteran’s headache disorder was not incurred in, or otherwise related to, active duty service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 30, 2014, for the grant of service connection for an acquired psychiatric disorder, characterized as PTSD, have not been met. 38 U.S.C. § 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. 2. The February 2001 rating decision that denied the Veteran’s claim for entitlement to service connection for hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. As the evidence received subsequent to the February 2001 rating decision is new and material, the requirements to reopen the claim for hearing loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 4. The April 2010 Board decision that denied the Veteran’s claims for entitlement to service connection for body weakness and aching, stomach pain, sleep disorder, and alopecia is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. As the evidence received subsequent to the April 2010 Board decision is neither new nor material, the requirements to reopen the claims for body weakness and aching, stomach pain, sleep disorder, and alopecia, have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 6. The criteria for entitlement to service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 7. The criteria for entitlement to service connection for a sinus disorder, to include rhinitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 8. The criteria for entitlement to service connection for a respiratory disorder, to include asthma, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 9. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 10. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1976 to November 1979, from November 1980 to November 1984, and from January 1991 to May 1991. The Board notes that in April and December 2010, the Board previously denied the Veteran’s service connection claim for an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) pursuant to 38 U.S.C. § 1117. Further, the Veteran has filed new and material evidence claims to reopen his previously denied claims of service connection for body weakness and aching, stomach pain, sleep disorder, and alopecia. Therefore, as discussed below, given that these disorders and/or their symptoms can also be symptoms of an undiagnosed illness or MUCMI pursuant to 38 U.S.C. § 1117, the Board will also infer a new and material evidence claim to reopen his previously denied service connection claim for an undiagnosed illness or MUCMI. Earlier Effective Date 1. Entitlement to an effective date prior to May 30, 2014 for the grant of service connection for an acquired psychiatric disorder, characterized as PTSD The Veteran generally asserts that he is entitled to an earlier effective for his service-connected psychiatric disability. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §§ 3.400(b)(2)(i), (ii). In this case, the assigned effective date for the Veteran’s psychiatric disorder was May 30, 2014. After a review of the claims file, the Board finds that the Veteran’s service connection claim was received by the RO on May 30, 2014. Moreover, the date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to May 30, 2014. In this regard, a review of the record also fails to show that the RO received claim or informal written communication indicative of the Veteran’s desire to seek to file a claim of service connection for a psychiatric disorder. Additionally, the Board acknowledges that the Veteran had symptoms and a diagnosis of a psychiatric disorder prior to May 30, 2014. However, the Board is bound by the applicable regulations. Because the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later, and because the date of receipt of the Veteran’s claim for service connection for a psychiatric disorder was May 30, 2014, an effective date earlier than this date for the grant of service connection is denied. 38 C.F.R. § 3.400. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hearing loss In this case the Veteran is claiming entitlement to service connection for hearing loss and a sleep disorder. The Veteran’s hearing loss claim was previously denied by the RO in February 2001 on the basis that he did not have a diagnosis of this disorder. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. After a review of the evidence submitted since the February 2001 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including new medical treatment records and lay statements, which raises the possibility that he has a current diagnosis of bilateral hearing loss that may be related to his active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claim, it is also “material,” as it relates to an unestablished fact necessary to support the claim. Namely, it shows that there may be a nexus between this disorder and the Veteran’s active duty service. Therefore, the claim is reopened on this basis. 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for body weakness and aching 4. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for stomach pains 5. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep disorder 6. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for alopecia The Veteran is also claiming entitlement to service connection for body weakness and aching, stomach pain, sleep disorder, and alopecia. These claims were previously denied by the Board in April 2010 on the basis that these disorders were not related to service. He did not appeal that decision. This represents the last final denial of the claim. After a review of the evidence submitted since the April 2010 Board decision became final, the Board finds that new and material evidence has not been added to the record to reopen these claims. The evidence added to the record since the last final denial includes medical treatment records and lay statements. In this case, the treatment records only serve to confirm that the Veteran has a diagnosis of these disorders. Further, the lay statements added to the record only restate the Veteran’s previous contentions that his disorders are related to service. As the additional records are cumulative of the evidence already in the record, the Board finds that they are not new. Moreover, the additional evidence fails to demonstrate the disorder’s existence in service or relationship with service. Therefore, the Board finds that reopening the claims is not warranted. Service Connection 7. Entitlement to service connection for glaucoma 8. Entitlement to service connection for a sinus disorder, to include rhinitis 9. Entitlement to service connection for a respiratory disorder, to include asthma 10. Entitlement to service connection for hypertension 11. Entitlement to service connection for headaches The Veteran generally asserts that his glaucoma, respiratory disorder, sinus disorder, hypertension, and headaches, are related to service. Under the relevant laws and regulations, 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, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309. In this case, the Board concludes that while the Veteran has a current diagnosis of glaucoma, respiratory disorder, hypertension, sinus disorder, and headaches, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. In this case, the service treatment records are silent for any complaints, symptoms, or a diagnosis relating to an eye disorder, hypertension, respiratory disorder, headaches, and/or sinus disorder. Specifically, the Veteran’s September 1991 separation examination does not reflect a diagnosis of these disorders. Of note, the Veteran stated in his report of medical history that he was in “good health” and specifically denied symptoms related to these disorders. Moreover, the Veteran’s August 1994 reserve examination does not reflect any complaints, symptoms, or a diagnosis of these disorders. The Veteran’s post-service medical evidence does not demonstrate any symptoms of a headache disorder until 1995. Further, the objective evidence notes symptoms of a nasal disorder in 2003, with a diagnosis of rhinitis in 2013. Moreover, he did not have symptoms of a diagnosis of a respiratory disorder until approximately 2012, glaucoma in 2013, and hypertension until 2015, respectively. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced symptoms, including pain, headaches, breathing trouble, vision problems, and symptoms associated with hypertension since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing a relationship between his complaints and active service. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran’s claims. Further, the Veteran’s service treatment records from September 1991 and August 1994 contradict his assertions that his symptoms have persisted since service. Moreover, the Veteran’s May 2013 and November 2015 VA treatment records, as well as the November 2009 VA examination, reflect that the Veteran did not have continuing complaints of glaucoma, headaches, hypertension, and/or a respiratory disorder. Additionally, the Board notes that the Veteran filed a claim for VA benefits many years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. Here, while the Veteran had symptoms of headaches in 1995, and respiratory symptoms in 2003 (with a diagnosis of rhinitis in 2013), there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and these disorders. Similarly, the Veteran had respiratory symptoms in 2012, glaucoma in 2013, and hypertension in 2015 respectively. However, there is no objective medical evidence linking these disorders to service. Moreover, the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between his complaints and active service. As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between his disorders and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as pain, headaches, eye trouble, respiratory trouble, and symptoms of hypertension, he is not competent to provide a nexus opinion in this case. These issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims of service connection, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND 1. An initial rating in excess of 30 percent for a psychiatric disorder prior to December 7, 2016, and in excess of 50 percent thereafter, is remanded. The medical evidence, including the Veteran April 2018 private opinion, suggests that his service-connected psychiatric disability has worsened since his last VA examination in December 2016 - namely, the Veteran’s symptoms may reflect occupational and social impairment with deficiencies in most areas. Therefore, the Veteran should be afforded a new examination in order to accurately assess the current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); cf. VAOPGCPREC 11-95 (April 7, 1995). 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an undiagnosed illness or MUCMI pursuant to 38 U.S.C. § 1117, is remanded. As a preliminary matter, while the Board denied reopening the Veteran’s service connection claims for body weakness and aching, stomach pain, sleep disorder, and alopecia, on a direct basis, as discussed, these can be symptoms of a disorder under 38 U.S.C. § 1117(g). Therefore, as Board infers a new and material evidence claim based upon the evidence of record, a remand is required for the RO to adjudicate this aspect of the claim in the first instance. See Manlincon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to service connection for a back disorder 4. Entitlement to service connection for a left leg disorder, claimed as nerve damage. The Board notes that the Veteran’s VA treatment records, including from March 1995 and June 2015, in conjunction with the statements from the Veteran, reflect that his current back disorder may be related to his active service. Therefore, as the post-service evidence indicates that his current back disorder may be etiologically related to service, a VA examination to determine the nature, severity, and etiology of this disorder is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Similarly, the medical evidence also indicates that the Veteran’s leg disorder, diagnosed as a nerve impairment, may be secondary to his back disorder. Therefore, a VA examination is also warranted to determine the etiology of this disorder. 5. Entitlement to service connection for hearing loss is remanded. The Veteran has submitted new and material evidence, including new medical records from October 2016, which indicates he may have a diagnosis of hearing loss that may be related to active service. However, since this claim was not considered on its merits, it must be remanded for that purpose. See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (“When the Board reopens a claim after the AOJ has denied reopening that same claim, the matter generally must be returned to the AOJ for consideration of the merits.”). Therefore, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). 6. Entitlement to TDIU is remanded. Lastly, the Board notes that the Veteran has asserted, and the medical evidence including from April 2018 indicates, that his service-connected psychiatric disability significantly interferes with his ability to maintain substantial gainful employment. The Board notes that when a veteran submits a claim for an increased rating for a service-connected disability, it is a claim for the highest rating available, to include entitlement to TDIU, if raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As a result, TDIU has been raised by the record and the RO must develop and adjudicate this issue. The matter is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in East Orange, New Jersey, since December 2016, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them 2. Following completion of the above, schedule the Veteran for a VA examination to determine the current severity of his psychiatric disability. The claims folder must be made available to and pertinent documents therein reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. 3. Further, schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his back disorder and left leg disorder.   A comprehensive rationale must be provided for each opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel