Citation Nr: 20021801
Decision Date: 03/27/20	Archive Date: 03/27/20

DOCKET NO. 16-32 538
DATE: March 27, 2020

ORDER

Entitlement to an effective date prior to November 6, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) is denied.

Entitlement to an initial evaluation in excess of 70 percent for PTSD is denied.

Entitlement to a compensable initial evaluation for bilateral hearing loss is denied.

The application to reopen a previously denied claim of entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is denied.

The application to reopen a previously denied claim of entitlement to service connection for irritable bowel syndrome (IBS), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, and to include as secondary to PTSD, is denied.

The application to reopen a previously denied claim of entitlement to service connection for hypertension is granted.

Entitlement to service connection for hypertension is denied.

The application to reopen a previously denied claim of entitlement to service connection for wheezing is denied.

The application to reopen a previously denied claim of entitlement to service connection for sterility is denied.

The application to reopen a previously denied claim of entitlement to service connection for skin rashes is denied.

The application to reopen a previously denied claim of entitlement to service connection for tension headaches (previously migraine headaches), to include as secondary to PTSD and tinnitus, is granted.

Entitlement to service connection for tension headaches is granted.

The application to reopen a previously denied claim of entitlement to service connection for a rapid heartbeat is denied.

The application to reopen a previously denied claim of entitlement to service connection for a cerebrovascular accident (CVA) is granted.

Entitlement to service connection for a CVA is denied.

The application to reopen a previously denied claim of entitlement to service connection for night sweats or cold sweats, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is denied.

The application to reopen a previously denied claim of entitlement to service connection for muscle pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is denied.

REMANDED

Entitlement to an initial evaluation in excess of 10 percent for a lumbosacral strain is remanded.

Entitlement to an initial evaluation in excess of 10 percent for a right knee strain is remanded.

Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded.

The application to reopen a previously denied claim of entitlement to service connection for unspecified joint pain (other than lumbosacral and right knee pain), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded.

FINDINGS OF FACT

1.   A March 2007 rating decision denied an application to reopen a previously denied claim for service connection for PTSD; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the decision, which became final.

2.  After the issuance of the March 2007 rating decision, no communication was received from the Veteran until he filed his request to reopen the claim for service connection for PTSD on November 6, 2014.

3.  The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity; total social and occupational impairment is not shown.

4.  The Veteran’s bilateral hearing loss is manifested by level I hearing in the right ear, and level II hearing in the left ear.

5.  A November 2001 rating decision denied the Veteran’s claim for service connection for fatigue (currently characterized as CFS); the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

6.  The Veteran failed to report to a December 2017 VA examination necessary to establish whether reopening the claim for service connection for CFS is warranted; no good cause for the failure to report is shown.

7.  A March 2007 rating decision reopened the Veteran’s claim for service connection for IBS and denied the claim on the merits; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

8.  The Veteran failed to report to a December 2017 VA examination necessary to establish whether reopening the claim for service connection for IBS is warranted; no good cause for the failure to report is shown.

9.   A March 2007 rating decision denied the Veteran’s claim for service connection for hypertension; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

10.  Evidence received since the March 2007 rating decision is not cumulative or redundant with regard to the claimed hypertension and raises a reasonable possibility of substantiating the claim.

11. The Veteran’s hypertension is not shown to be causally or etiologically related to any disease, injury, or incident in service; hypertension is not shown to have manifested to a compensable degree within one year of separation from service.

12.  A November 2001 rating decision denied the Veteran’s claim for service connection for wheezing; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

13.  The Veteran failed to report to a December 2017 VA examination necessary to establish whether reopening the claim for service connection for wheezing is warranted; no good cause for the failure to report is shown.

14.  A March 2007 rating decision denied the Veteran’s claim for service connection for sterility; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

15.  The Veteran failed to report to a December 2017 VA examination necessary to establish whether reopening the claim for service connection for sterility is warranted; no good cause for the failure to report is shown.

16.  A November 2001 rating decision denied the Veteran’s claim for service connection for skin rashes; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

17.  Evidence received since the November 2001 rating decision is cumulative and redundant with regard to the claimed skin rashes.

18.   A March 2007 rating decision denied the Veteran’s claim for service connection for migraine headaches; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

19.  Evidence received since the March 2007 rating decision is not cumulative or redundant with regard to the claimed tension headaches (previously migraine headaches) and raises a reasonable possibility of substantiating the claim.

20. The Veteran’s tension headaches are shown to be permanently aggravated by service-connected disability.

21.  A November 2001 rating decision denied the Veteran’s claim for service connection for a rapid heartbeat; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

22.  Evidence received since the November 2001 rating decision is cumulative and redundant with regard to the claimed rapid heartbeat.

23.  A March 2007 rating decision denied the Veteran’s claim for service connection for a stroke; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

24.  Evidence received since the March 2007 rating decision is not cumulative or redundant with regard to the claimed CVA and raises a reasonable possibility of substantiating the claim.

25.  The Veteran’s CVA is not shown to be causally or etiologically related to any disease, injury, or incident in service.

26. A March 2007 rating decision denied the Veteran’s claim for service connection for night sweats (recharacterized as PTSD); the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

27.  Evidence received since the March 2007 rating decision is cumulative and redundant with regard to the claimed night sweats.

28.  A November 2001 rating decision denied the Veteran’s claim for service connection for muscle pain; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial.

29.  The Veteran failed to report to a December 2017 VA examination necessary to establish whether reopening the claim for service connection for muscle pain is warranted; no good cause for the failure to report is shown.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to an effective date prior to November 6, 2014, for service connection for PTSD are not met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019).

2. The criteria for entitlement to an initial evaluation in excess of 70 percent for PTSD are not met.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019).

3.  The criteria for entitlement to a compensable initial evaluation for bilateral hearing loss are not met.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.385, 4.1, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100 (2019).

4.  The November 2001 rating decision that denied service connection for fatigue is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

5.  The application to reopen the claim for service connection for CFS, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is denied as a matter of law.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.655(a) and (b) (2019).

6.  The March 2007 rating decision that denied service connection for IBS is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

7.  The application to reopen the claim for service connection for IBS, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, and to include as secondary to PTSD, is denied as a matter of law.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.655(a) and (b) (2019).

8.  The March 2007 rating decision that denied an application to reopen a claim for service connection for hypertension is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

9.  New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for hypertension.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019).

10.  The criteria for entitlement to service connection for hypertension have not been met; service connection may not be presumed.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309(a), 4.104 (Diagnostic Code 7101) (2019).

11.  The November 2001 rating decision that denied service connection for wheezing is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

12.  The application to reopen the claim for service connection for wheezing is denied as a matter of law.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.655(a) and (b) (2019).

13.  The March 2007 rating decision that denied service connection for sterility is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

14.  The application to reopen the claim for service connection for sterility is denied as a matter of law.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.655(a) and (b) (2019).

15.  The November 2001 rating decision that denied an application to reopen a claim for service connection for skin rashes is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

16.  New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for skin rashes.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019).

17.  The March 2007 rating decision that denied service connection for migraine headaches is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

18.  New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for tension headaches (previously migraine headaches).  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

19. The criteria for entitlement to service connection for tension headaches are met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019).

20.  The November 2001 rating decision that denied an application to reopen a claim for service connection for a rapid heartbeat is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

21.  New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for a rapid heartbeat.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019).

22. The March 2007 rating decision that denied service connection for a stroke is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

23.  New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for a CVA (claimed as a stroke).  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019).

24.  The criteria for entitlement to service connection for a CVA have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019).

25. The March 2007 rating decision that denied an application to reopen a claim for service connection for night sweats (recharacterized as PTSD) is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

26.  New and material evidence has not been received sufficient to reopen the Veteran’s claim for service connection for night sweats or cold sweats.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019).

27.  The November 2001 rating decision that denied an application to reopen a claim for service connection for muscle pain is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

28.  The application to reopen the claim for service connection for muscle pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is denied as a matter of law.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.655(a) and (b) (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from October 1986 to February 1992 including service in Southwest Asia from January to March 1991.  

These matters come before the Board of Veteran’s Appeals (Board) on appeal from April 2015, April 2016, June 2016, and November 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

Analysis

1.  Entitlement to an effective date prior to November 6, 2014, for the award of service connection for PTSD

An April 2016 rating decision granted service connection for PTSD, effective November 6, 2014.  The Veteran seeks entitlement to an earlier effective date.  See Notice of disagreement, September 2016.

The effective date of an award of compensation based on an original claim for service connection or request to reopen a claim will generally “be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400 (2019); see also 38 U.S.C. § 5110(a) (2012).  

Effective on March 24, 2015, VA amended its regulations, effectively eliminating informal claims and requiring a “complete claim” on a form proscribed by the Secretary.  See 38 C.F.R. §§ 3.155, 3.160 (2019).  However, prior to March 24, 2015, which is the time relevant time period in this appeal, “any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA] … may be considered an informal claim. Such informal claim must identify the benefit sought.” 38 C.F.R. § 3.155(a) (2015).

The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.  Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).  Likewise, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection.  See Lalonde v. West, 12 Vet. App. 377 (1999).

A July 2000 rating decision denied the Veteran’s original claim for service connection for PTSD.  A November 2001 rating decision confirmed and continued the denial of the claim; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the November 2001 rating decision, which became final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 

In May 2006, the Veteran filed a request to reopen the PTSD claim.  A March 2007 rating decision found no new and material evidence had been received and denied reopening the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.

After the issuance of the March 2007 rating decision, no communication was received from the Veteran until he filed his request to reopen the claim for service connection for PTSD on November 6, 2014.  The fax coversheet was dated on November 6, 2014, and the fax transmission date at the head of the document shows it was transmitted on November 6, 2014, albeit the signature date reflects November 7, 2014. Neither the Veteran nor his attorney representative provided any evidence or reasons why an earlier date is warranted. 

In light of the above, the Board finds that the preponderance of the evidence is against finding entitlement to an effective date prior to November 6, 2014, for the awards of service connection for PTSD.  The earliest possible effective date is the date VA received the request to reopen the claim – November 6, 2014.  

Therefore, in summary, the Board concludes that entitlement to an effective date prior to November 6, 2014, for the awards of service connection for PTSD is not warranted, and the claim is denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application.  See 38 U.S.C. § 5107(b).

2.  Entitlement to an initial evaluation in excess of 70 percent for PTSD

An April 2016 rating decision granted service connection for PTSD and assigned a 30 percent rating, effective November 6, 2014.  A later June 2016 increased the rating to 70 percent, effective November 6, 2014.  The Veteran continues to seek a higher initial evaluation.  See Notice of disagreement, September 2016.

The Veteran’s service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disabilities. 38 C.F.R. § 4.130 (2019).  Ratings are assigned according to the manifestation of particular symptoms.  Notably, the term such as in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA will consider all symptoms of a claimant’s disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM V).

The criteria for a 70 percent rating are as follows:

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); inability to establish and maintain effective relationships.

The criteria for a 100 percent rating are as follows:

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; memory loss for names of close relatives, own occupation, or own name.

38 C.F.R. § 4.130, Diagnostic Code 9411 (2019).

The Board notes that the DSM-V no longer utilizes GAF scores. The DSM-V is applicable for cases certified to the Board on or after August 4, 2014.  In this case, the appeal was certified in February 2018.

The Veteran was afforded a May 2016 VA examination.  The examiner noted that the Veteran met the diagnostic criteria for PTSD and assessed that the overall level of severity of the Veteran’s symptoms was best characterized as: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  The Veteran reported he was working, but that he had difficulty maintaining his employment for more than a few months due to his PTSD symptoms.  He reported missing days of work due to not being able to function due to his PTSD.  He reported feeling forgetful, irritable, easily frustrated, and paranoid, making it difficult to go to work.  He also reported symptoms of insomnia, feeling detachment from others, excessive crying spells, nightmares, and hypervigilance.  He also reported experiencing periods of depressed mood for up to four days, with sleep problems, restlessness, fatigue, difficulty concentrating, isolation, and crying spells.  He reported that the majority of the time, he is not depressed, but when he is, he will lose days from work because he cannot get out of bed and if he does, he is very irritable.  He reported he had not been able to keep a job longer than 18 months since service.  The examiner accepted the reports and noted the Veteran was highly upset when discussing his symptoms.  The report shows the examiner did not note any symptoms contemplated by the 100 percent rating criteria.  Regarding the effect of the Veteran’s PTSD on his ability to work, the examiner noted that the Veteran was working, but did not know how long he would sustain employment because he often skipped days of work when his symptoms are exacerbated and he isolated, and the Veteran asked to leave early from work when he did not feel well.  The examiner noted these symptoms would result in being let go from employment.  

The Board also acknowledges April 2016 lay statements from the Veteran’s friend of 10 years, T.P., his sister, P. B.-A., and from his brother, D.S.  Ms. T.P. wrote that the she met the Veteran in 2006 working together at [REDACTED], and that the Veteran missed days of work because of sleep trouble.  She reported his sleep trouble continues, and that he wakes in the night in a “cold sweat,” and that he gets up in the middle of the night to make sure the door is locked, and no windows are open.  She reported he gets nervous and agitated in large crowds, and that he gets startled and agitated when approached by someone he does not know.  The Veteran’s sister, P. B.-A. wrote in her statement that the Veteran suffers from PTSD and depression.  His brother D.S. wrote that the Veteran experiences extreme anxiousness, mood swings, and panic when they go out to eat.   

The Board has carefully reviewed all of the other medical evidence of record, which does not reflect symptoms more severe than those noted above.

In light of all of the evidence of record, the Board finds that the criteria for the next higher 100 percent rating criteria are clearly not met or approximated.  Total occupational impairment is not shown, as the Veteran reports working.  Total social impairment is not shown, as the Veteran has a friend of 10 years.  The May 2016 VA examiner characterized the Veteran's overall level of symptoms as best described by the 70 percent rating criteria, namely: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  The Veteran was not shown to have any symptoms of a level of severity as those contemplated by the 100 percent rating criteria, such 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.

Therefore, the Board concludes that entitlement to an evaluation in excess of 70 percent for PTSD is not warranted; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application.  See 38 U.S.C. § 5107(b).

In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether referral for extraschedular consideration is warranted if 38 C.F.R. § 3.321(b)(1) is neither specifically sought by the claimant nor reasonably raised by the facts found by the Board).

3.  Entitlement to a compensable evaluation for bilateral hearing loss is denied.

The Veteran’s bilateral hearing loss is currently assigned a noncompensable rating under Diagnostic Code 6100, effective November 6, 2014.  The Veteran seeks a higher initial rating.  See Rating decision, April 2015; Notice of disagreement, March 2016.

Evaluations of defective hearing range from noncompensable to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2019).

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.86(a) (2019).  Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b) (2019).

Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the ratings schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The use of the controlled Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test was established by regulation and published in the Federal Register on November 18, 1987.  See 52 Fed. Reg. 44,117.

A March 2015 VA examination report shows pure tone thresholds were as follows:

 	Hertz (decibels)

 	500	1000	2000	3000	4000	Avg.

RIGHT	30	45	45	50	50	47.5

LEFT	35	40	40	40	40	40

Speech recognition scores using Maryland CNC word lists were 94 percent for the right ear, and 90 percent for the left ear.  Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level I hearing in the right ear, and level II hearing in the left ear.  Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level I hearing in the right ear and level II in the left corresponds to a noncompensable rating.  See 38 C.F.R. § 4.85 (2019).

Another VA examination was scheduled for April 2016, but the Veteran failed to report.  In September 2016, he acknowledged that he failed to report and requested that a new VA examination be scheduled but did not provide any good cause explanation for his failure to appear for the examination.  The Board adds that later, three other VA examinations were scheduled relating to other claims on appeal, and again the Veteran failed to report to those examinations in December 2017, and again no good cause explanation was provided.  Therefore, the Board will decide the claim for a higher rating for the bilateral hearing loss based on the evidence of record.  See 38 C.F.R. § 3.655 (2019).

The Board has also reviewed all of the Veteran’s VA treatment records in the claims file, none of which show any treatment for his hearing loss during the period on appeal.

Based on the audiological test results of record, the Board finds that the preponderance of the evidence is against finding entitlement to a compensable disability rating is warranted, and therefore the claim for a higher initial rating must be denied.

In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether referral for extraschedular consideration is warranted if 38 C.F.R. § 3.321(b)(1) is neither specifically sought by the claimant nor reasonably raised by the facts found by the Board).

4.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for CFS, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness

The Veteran requests reopening of a previously denied claim of entitlement to service connection for CFS.  As explained in greater detail below, because the Veteran failed to appear for a VA examination, without good cause shown, the request to reopen the claim must be denied as a matter of law.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for fatigue, citing a lack of evidence of a current disability and a lack of evidence relating it to service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 or November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In November 2014, the Veteran filed a request to reopen the claim (as for “fatigue”).  An April 2015 rating decision denied reopening the claim, and the Veteran appealed herein.  See Notice of disagreement, March 2016, June 2016 Statement of the Case, July 2016 Form 9.  

At the time of the last final denial in November 2001, the evidence of record included the Veteran’s service treatment records, which showed no complaint or treatment for fatigue.

Since the time of the last final denial, new evidence associated with the claims file includes the Veteran’s post-service VA and private treatment records, and an article regarding Gulf War Syndrome article submitted by the Veteran in November 2014.  The VA treatment records include an April 2014 VA mental health treatment record that shows the Veteran reported experiencing fatigue in the context of sleep problems due to depression, which indicates the Veteran’s fatigue is a symptom of his already service-connected PTSD, rather than a separate disability.  The November 2014 article notes that studies have found that Persian Gulf veterans have higher incidences of chronic fatigue syndrome, but the Board notes that in this particular case, there is no medical evidence of record tending to show that the Veteran has CFS.

The Veteran was afforded a May 2016 VA Gulf War examination.  No CFS was diagnosed.  The examiner opined that the Veteran had no undiagnosed illness for which no etiology could be established, including no medically unexplained chronic multisymptom illness.  No rationale was provided for the opinion.  

Another VA Gulf War examination was scheduled for December 2017, but the Veteran failed to appear for the examination.  No good cause for the failure to appear has been asserted by the Veteran.  The Board finds that this examination was necessary to establish whether the Veteran has CFS.

38 C.F.R. § 3.655(a) provides: “When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.”  Paragraph (b) provides: “When a claimant fails to report for an examination scheduled in conjunction with . . . [a] claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.”  38 C.F.R. § 3.655(b) (2018). 

The Board finds that, based on the presumption of regularity, the Veteran received notice of the examination, which presumption has not been rebutted by clear and convincing evidence.  See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (VA’s established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination).  

Therefore, as the Veteran failed to report for a scheduled VA examination that was necessary in reviewing his application to reopen the previously denied claim, without any good cause having been shown, the Board concludes that the application to reopen the claim for service connection for CFS must be denied as a matter of law.  See 38 C.F.R. § 3.655(b).  

5.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for IBS, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, and to include as secondary to PTSD

The Veteran requests reopening of a previously denied claim for service connection for IBS, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness.  In the alternative, he asserts he has IBS as secondary to his service-connected PTSD.  As explained in greater detail below, because the Veteran failed to appear for a VA examination, without good cause shown, the request to reopen the claim must be denied as a matter of law.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for “diarrhea” on the basis that there was no evidence of a current disability or any relationship to service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 and November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In May 2006, the Veteran filed a request to reopen the claim for “diarrhea,” and also claimed service connection for IBS.   A March 2007 rating decision denied reopening the claim for diarrhea, citing the fact that none of the Veteran’s service treatment records or VA treatment records show any treatment for diarrhea.  The March 2007 rating decision separately denied service connection for IBS, citing a lack of treatment for IBS in service, and no current diagnosis.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In November 2014, the Veteran filed another request to reopen the IBS claim.  An April 2015 rating decision denied reopening the claim, and the Veteran appealed to the Board.

At the time of the last final denial in March 2007, the evidence of record included the Veteran’s service treatment records and post-service VA treatment records, none of which showed treatment for diarrhea or diagnosed IBS.

Since the time of the last final denial, new evidence associated with the claims file includes February 2015 and October 2015 VA treatment records that show the Veteran complained of diarrhea twice a week, that a fecal occult blood test was positive, and that a colonoscopy was planned but the Veteran did not follow up.  See Records, received October 2017 at p.4 and 29 of 117.  Also new is an article received in October 2017 regarding anxiety-depression and IBS, and a September 2017 positive medical opinion from Dr. H.S. 

The September 2017 letter from a consulting physician, Dr. H.S., shows he noted that the Veteran had the positive fecal occult blood testing, and that the Veteran failed to undergo the planned colonoscopy at the VA medical center.  Dr. H.S. opined that the Veteran has IBS that is “precipitated by and aggravated by his service-connected PTSD.”    See Records, received October 2017 at p.4 and 31 of 117.   Thus, Dr. H.S. opined that the Veteran’s IBS was caused by and aggravated by his service-connected PTSD.  The Board notes, however, that Dr. H.S. did not examine the Veteran or provide any explanation for the IBS diagnosis itself (while noting the Veteran failed to undergo the recommended colonoscopy at the VA medical center).  Furthermore, the Board finds the etiological opinion to lack probative value because it states both that the Veteran has IBS that was caused by his PTSD, and that it was aggravated by his PTSD. Moreover, the consultant’s address is in a location distant from the Veteran and a consultation, if any, was likely by electronic means. 

The Veteran was afforded a May 2016 VA Gulf War examination.  The examiner opined that there was insufficient evidence of IBS on examination or in the medical records, and that a clinical diagnosis could not be endorsed at this time.  The examiner further opined that the Veteran had no undiagnosed illness for which no etiology could be established, including no medically unexplained chronic multisymptom illness.  The Board acknowledges that no rationale was provided for the undiagnosed illness opinion.  

Another VA Gulf War examination was scheduled for December 2017, but the Veteran failed to appear for the examination.  No good cause for the failure to appear has been asserted by the Veteran.  The Board finds that this examination was necessary to establish whether the Veteran has IBS.

38 C.F.R. § 3.655(a) provides: “When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.”  Paragraph (b) provides: “When a claimant fails to report for an examination scheduled in conjunction with . . . [a] claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.”  38 C.F.R. § 3.655(b) (2018). 

The Board finds that, based on the presumption of regularity, the Veteran received notice of the examination, which presumption has not been rebutted by clear and convincing evidence.  See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (VA’s established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination).  

Therefore, as the Veteran failed to report for a scheduled VA examination that was necessary in reviewing his application to reopen the previously denied claim, without any good cause having been shown, the Board concludes that the application to reopen the claim for service connection for IBS must be denied as a matter of law.  See 38 C.F.R. § 3.655(b).  

6.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hypertension

The Veteran requests reopening of a previously denied claim of entitlement to service connection for hypertension.  For the reasons explained below, the Board finds that new and material evidence has been received, and the application to reopen the claim is granted.  

A March 2007 rating decision denied the Veteran’s original claim for service connection for hypertension on the basis that there was no evidence of hypertension in the service treatment records, and no evidence of current hypertension disease.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). 

In September 2016, the Veteran filed a request to reopen the claim.  A November 2016 rating decision denied the request to reopen the claim, and the Veteran appealed to the Board. 

At the time of the last final denial in March 2007, the evidence of record included the Veteran’s service treatment records and VA treatment records, none of which show any treatment for hypertension or high blood pressure.

Since the time of the last final denial, new evidence associated with the claims file includes, but is not limited to, private treatment records showing diagnosed hypertension.  See Records, received April 2016 at p.3.  The Board finds that this evidence is not only new, but it is material because it relates to an unestablished fact necessary to substantiate the claim.  Therefore, having found that new and material evidence has been received, the Board will grant the application to reopen the claim.

7.  Entitlement to service connection for hypertension

The Veteran asserts that he has hypertension that is caused by his active service.

His service treatment records show no diagnosis of high blood pressure or hypertension.  

There is also no record of elevated blood pressure readings or hypertension within one year of separation from service.  Therefore, service connection may not be presumed.  See 38 C.F.R. § 3.309(a) (2019).

The first medical records of hypertension are November 2005 to December 2005 private hospitalization records showing the Veteran was admitted for cerebral hemorrhage with hypertension and new onset CVA.  See Records, received April 2016 at p.3 of 15.

Subsequent VA treatment records show the Veteran has been followed for diagnosed hypertension.  See, e.g., CAPRI, received September 2017 at p.9. 

In light of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran’s hypertension is related to his active service.  There is no medical evidence of record tending to indicate any etiological link between the Veteran’s hypertension and his active service.  There is no record of hypertension in service or systolic blood pressure readings in service of 160mm or diastolic of 90mm.  The first record of hypertension was not until 2005, around 14 years after his separation from active service.  Such a prolonged period without any evidence of hypertension weighs heavily against the assertion that the disease had its onset in service or is otherwise related to his active service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (2000).  

To the extent the Veteran himself, as a lay person, opines that his hypertension did have its onset in service or is otherwise related to his active service, the Board finds that the Veteran’s opinion carries no probative weight because it is not supported by any rationale.

In summary, the Board concludes that service connection for hypertension is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application.

8.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for wheezing

The Veteran requests reopening of a previously denied claim for service connection for wheezing.  As explained in greater detail below, because the Veteran failed to appear for a VA examination, without good cause shown, the request to reopen the claim must be denied as a matter of law.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for wheezing on the basis that no current disability was shown, and no relationship to service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 or November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In September 2016, the Veteran filed a request to reopen the claim.  A November 2016 rating decision denied reopening the claim for wheezing, and the Veteran appealed to the Board.

At the time of the last final denial in November 2001, the evidence of record included the Veteran’s service treatment records, which show a history of asthma at the age of seven was noted on the enlistment examination report and report of medical history.  See Service treatment records at p.14-15 of 105.  No asthma or suspected asthma, or wheezing, is shown in any of the service treatment records.

Since the time of the last final denial, new evidence associated with the claims file includes more recent VA treatment records, which do not show any wheezing or similar symptoms or asthma.  In fact, these records note on several occasions that examination revealed “no wheezing.”  See, e.g., CAPRI, received November 2016 at p.3 and 25 of 131.

A December 2017 VA examination was scheduled for the asthma claim, but the Veteran failed to appear for the examination.  No good cause for the failure to appear has been asserted by the Veteran.  The Board finds that this examination was necessary to establish whether the Veteran has a disability manifested by wheezing that is related to his active service.

38 C.F.R. § 3.655(a) provides: “When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.”  Paragraph (b) provides: “When a claimant fails to report for an examination scheduled in conjunction with . . . [a] claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.”  38 C.F.R. § 3.655(b) (2018). 

The Board finds that, based on the presumption of regularity, the Veteran received notice of the examination, which presumption has not been rebutted by clear and convincing evidence.  See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (VA’s established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination).  

Therefore, as the Veteran failed to report for a scheduled VA examination that was necessary in reviewing his application to reopen the previously denied claim, without any good cause having been shown, the Board concludes that the application to reopen the claim for service connection for wheezing must be denied as a matter of law.  See 38 C.F.R. § 3.655(b). 

 

9. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for sterility

The Veteran requests reopening of a previously denied claim for service connection for sterility.  As explained in greater detail below, because the Veteran failed to appear for a VA examination, without good cause shown, the request to reopen the claim must be denied as a matter of law.  

A March 2007 rating decision denied the Veteran’s original claim for service connection for sterility on the basis that no current disability was shown.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In September 2016, the Veteran filed a request to reopen the claim.  A November 2016 rating decision denied reopening the claim for sterility, and the Veteran appealed to the Board.

At the time of the last final denial in March 2007, the evidence of record included the Veteran’s service treatment records and VA treatment records, which show no diagnosed sterility.

Since the time of the last final denial, new evidence associated with the claims file includes more recent VA treatment records, which do not show any diagnosis of sterility.

A December 2017 VA examination was scheduled for the sterility claim.  The Veteran failed to appear for the examination, and he has not alleged any good cause for such failure to report.  The Board finds that this examination was necessary to establish whether the Veteran has sterility that is related to his active service.

38 C.F.R. § 3.655(a) provides: “When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.”  Paragraph (b) provides: “When a claimant fails to report for an examination scheduled in conjunction with . . . [a] claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.”  38 C.F.R. § 3.655(b) (2018). 

The Board finds that, based on the presumption of regularity, the Veteran received notice of the examination, which presumption has not been rebutted by clear and convincing evidence.  See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011).

The Board concludes that because the Veteran failed to report for a scheduled VA examination that was necessary in reviewing his application to reopen the previously denied claim, without any good cause having been shown, the application to reopen the claim for service connection for sterility must be denied as a matter of law.  See 38 C.F.R. § 3.655(b).  

10. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for skin rashes

The Veteran requests reopening of a previously denied claim of entitlement to service connection for skin rashes.  For the reasons explained below, the Board finds that new and material evidence has not been received, and the application to reopen the claim is denied.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for skin rashes on the basis that that there was no evidence of a current disability or treatment in service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 and November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In September 2016, the Veteran filed a request to reopen the claim.  A November 2016 rating decision denied the application to reopen the claim, citing the lack of evidence of a current disability.  The Veteran appealed herein.

At the time of the last final denial in November 2001, the evidence of record included the Veteran’s service treatment records (received in June 2000), none of which showed any treatment for a skin rash.

Since the time of the last final denial, new evidence associated with the claims file includes the Veteran’s more recent VA treatment records and private treatment records, which again show no treatment for any skin rash.  Also new is the Veteran’s testimony at the DRO hearing that he has experienced skin rashes on his leg “for years.”  The Board notes that this evidence is redundant of medical evidence previously of record at the time of the last final denial, i.e., that he experiences a skin rash.  Therefore, unfortunately, without evidence that is both new and material, the application to reopen the claim must be denied.

11.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tension headaches (previously migraine headaches), to include as secondary to PTSD and tinnitus

12.  Entitlement to service connection for tension headaches

The Veteran requests reopening of a previously denied claim of entitlement to service connection for tension headaches (previously migraine headaches).  For the reasons explained below, the Board finds that new and material evidence has been received, the claim is reopened, and service connection is granted.  

A March 2007 rating decision denied the Veteran’s original claim for service connection for migraine headaches on the basis that there was no evidence of a current diagnosis.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In September 2016, the Veteran filed a request to reopen the claim.  A November 2016 rating decision denied the application to reopen the claim, and the Veteran appealed herein.

At the time of the last final denial in March 2007, the evidence of record included the Veteran’s service treatment records and post-service VA treatment records, none of which showed complaints of or diagnosis for any headaches.

Since the time of the last final denial, new evidence associated with the claims file includes a February 2018 DBQ prepared by consulting physician, Dr. H.S., showing diagnosed tension headaches with a positive etiological opinion.  Dr. H.S. noted that the Veteran reported experiencing headaches since service, he noted that the Veteran’s service-connected tinnitus and PTSD and opined that the Veteran’s tension headaches are permanently aggravated by his service-connected tinnitus and PTSD.  As noted above, the consulting physician is located distant from the Veteran’s residence and any consultation was likely by electronic means.  Dr. H.S. cited to a 1984 medical study regarding the frequency of headaches in patients with tinnitus, and to a 2006 medical article regarding psychological stress and its impact on headaches (see footnote 2).  

The Board finds that this new evidence associated with the claims file since the last final denial that shows a diagnosed tension headaches disability and a positive etiological opinion is not only new but material.  Therefore, the claim is reopened.

Furthermore, the Board finds that a preponderance of the evidence supports granting the underlying service connection claim.  The Board acknowledges that headaches are subjective, and that the Veteran’s separation examination report is not associated with his service treatment records.  The Board finds the Veteran’s reports of experiencing headaches to be credible, and there is no medical evidence or other documentary evidence of record that contradicts the opinion of Dr. H.S. who opined that the Veteran’s tension headaches are aggravated by his service-connected tinnitus and PTSD.  As the headaches are self-reported, an in-person examination would not likely add more probative weight.  Dr. H.S. also cited to two medical articles in support of his opinion.  The Board is cognizant that “any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.”  38 C.F.R. § 3.310(b) (2019); Allen v. Brown, 7 Vet. App. 439 (1995).

Therefore, in light of all of the above, the Board concludes that entitlement to service connection for tension headaches aggravated by service-connected tinnitus and PTSD is warranted, and the claim is granted.

13. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a rapid heartbeat

The Veteran requests reopening of a previously denied claim of entitlement to service connection for a rapid heartbeat.  For the reasons explained below, the Board finds that new and material evidence has not been received, and the application to reopen the claim is denied.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for a rapid heartbeat on the basis that that there was no evidence of a current disability and its relationship to service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 rating decision and November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In September 2016, the Veteran filed a request to reopen the claim.  A November 2016 rating decision denied the application to reopen the claim, citing the lack of evidence of a current disability.  The Veteran appealed herein.

At the time of the last final denial in November 2001, the evidence of record included the Veteran’s service treatment records (received in June 2000), none of which showed any treatment for a heart disability manifested by a rapid heartbeat.

Since the time of the last final denial, new evidence associated with the claims file includes the Veteran’s more recent VA treatment records and private treatment records, which again show no treatment for any disability manifested by a rapid heartbeat.  A private treatment record relating to a hospitalization for a CVA in 2005 shows an EKG was performed and the Veteran’s sinus rhythm was normal.  See Records, received April 2016 at p.14.  The Board finds that this evidence is redundant of medical evidence previously of record at the time of the last final denial.  Therefore, unfortunately, without evidence that is both new and material, the application to reopen the claim must be denied.

14.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a CVA

15.  Entitlement to service connection for a CVA

The Veteran requests reopening of a previously denied claim of entitlement to service connection for a CVA (claimed as a stroke).  For the reasons explained below, the Board finds that new and material evidence has been received, and the claim is reopened, but the underlying claim for service connection is denied on the merits, as explained below.

A March 2007 rating decision denied the Veteran’s original claim for service connection for a stroke on the basis that there was no evidence of a stroke in the records.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017).

In September 2016, the Veteran filed a request to reopen the claim as for service connection for a stroke.  A November 2016 rating decision denied reopening the claim, which the Veteran appealed to the Board.

At the time of the last final denial in March 2007, the evidence of record included the Veteran’s service treatment records and post-service VA treatment records, none of which showed evidence of a stroke or CVA.

Since the time of the last final denial, new evidence associated with the claims file includes, but is not limited to, private facility records showing the Veteran was admitted from November 2005 to December 2005 for treatment for a CVA.  

The Board finds that this new evidence associated with the claims file since the last final denial that shows the Veteran did in fact suffer a CVA is not only new but material.  Therefore, the claim is reopened.

However, the Board finds that, having carefully reviewed all of the evidence of record, the preponderance of the evidence is against finding entitlement to service connection for a CVA.  There is no medical evidence tending to indicate that the Veteran’s CVA in 2005 is related to his active service.  Rather, the November 2005 to December 2005 private facility records showing he was admitted and treated for a CVA show the physician opined that the CVA was due to the Veteran’s hypertension and cocaine use.  The Veteran tested positive for cocaine during the hospital admission.  See Records, received April 2016 at p.11-13.

To the extent that the Veteran, as a lay person, opines that the CVA is nevertheless due to his active service, the Board finds his lay opinion has no probative value because it is not supported by any rationale, and because it is not consistent with the contemporaneous medical evidence of record that shows the Veteran presented to a private facility in November 2005, tested positive for cocaine use, and the CVA was noted as due to his cocaine use and hypertension.  The Board finds this contemporaneous medical evidence to be by far more probative.  Furthermore, the Veteran is not shown to have the training, medical expertise, or credentials to competently provide an etiological opinion regarding his CVA.  See King v. Shinseki, 700 F.3d 1339 (2012). 

Therefore, the Board concludes that entitlement to service connection for a CVA is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application.  See 38 U.S.C. § 5107(b).

16.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for cold sweats or night sweats

The Veteran requests reopening of a previously denied claim of entitlement to service connection for a “cold sweats” or “night sweats.”  For the reasons explained below, the Board finds that new and material evidence has not been received, and the application to reopen the claim is denied.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for “cold sweats” on the basis that that there was no evidence of a current disability and its relationship to service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 rating decision and November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In May 2006, the Veteran filed a request to reopen the claim – he requested reopening of multiple disabilities, including listing one disability as “PTSD, nightmares, night sweats.”  A March 2007 rating decision recharacterized the claim as for service connection for PTSD (claimed as nightmares and night sweats) and denied the claim.  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2007 rating decision, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

Subsequently, an April 2016 rating decision granted service connection for PTSD, which initial rating the Veteran appealed herein.

Although the Veteran’s September 2016 Form 21-526 did not include the issue of entitlement to service connection for a disability manifested by cold sweats or night sweats (other than PTSD), nevertheless, a November 2016 rating decision denied reopening a claim for “cold sweats” (the issue was combined with wheezing in the rating decision), citing the lack of evidence of a current disability.  The Veteran appealed herein.

At the time of the last final denial in March 2007, the evidence of record included the Veteran’s service treatment records and VA treatment records, none of which showed any complaints of night sweats or cold sweats.

Since the time of the last final denial, new evidence associated with the claims file includes the Veteran’s more recent VA treatment records showing that in March 2014, he reported experiencing nightmares and night sweats, that he has to sit with his back to the wall so he can see everyone, that he was in combat in the Desert Storm and saw casualties, and that he had filed for service connection for PTSD but was denied by VA (at the time).  See, e.g., CAPRI, received November 2016 at p.82-83.  Also new is the Veteran’s testimony at the DRO hearing that after service, he would toss and turn in bed at night and experience night sweats.  See DRO hearing transcript at p.6; see also Notice of disagreement, July 2015.

The Board finds that this evidence is redundant of medical evidence previously of record at the time of the last final denial.  None of the evidence tends to indicate that the Veteran has a disability manifested by night sweats that is separate and distinct from his already service-connected PTSD disability.  Rather, the evidence tends to indicate that the Veteran’s night sweats are a symptom of his already service-connected PTSD.  Therefore, unfortunately, without evidence that is both new and material, the application to reopen the claim must be denied.

17.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for muscle pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness

The Veteran requests reopening of a previously denied claim for service connection for “muscle pain,” to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness.  See DRO hearing transcript at p.12.  As explained in greater detail below, because the Veteran failed to appear for a VA examination, without good cause shown, the request to reopen the claim must be denied as a matter of law.  

A December 1999 rating decision denied the Veteran’s original claim for service connection for muscle pain on the basis that there was no evidence of a current disability or any relationship to service.  In June 2000, the Veteran’s service treatment records were associated with the claims file.  See 38 C.F.R. § 3.156(c) (2019).  July 2000 and November 2001 rating decisions continued the denial of the claim.  The November 2001 rating decision cited the fact that there was no record of treatment in service (see issue number “1-6”).  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the July 2000 and November 2001 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).

In September 2016, the Veteran filed another request to reopen the claim.  A November 2016 rating decision denied reopening the claim, and the Veteran appealed to the Board.

At the time of the last final denial in November 2001, the evidence of record included the Veteran’s service treatment records and post-service VA treatment records.  The service treatment records show he was treated for right ankle and right knee complaints, but no generalized muscle aches.  See Records, uploaded January 2015 at p.25-26, and 96-97.  The Board notes that the Veteran is already service-connected for a right knee strain, and that an unappealed November 2001 rating decision denied service connection for a right ankle disability (a typographical error shows “right knee pain;” but see Rating Codesheet, November 2001).

Since the time of the last final denial, new evidence associated with the claims file includes more recent VA treatment records, none of which show treatment for any disability or undiagnosed illness manifested by muscle pain that is separate from his already service-connected lumbosacral strain or right knee strain.

The Veteran was afforded a May 2016 VA Gulf War examination.  The examiner opined that the Veteran had no undiagnosed illness for which no etiology could be established, including no medically unexplained chronic multisymptom illness.  The Board acknowledges that no rationale was provided for the undiagnosed illness opinion.  

The Veteran testified at the DRO hearing where his representative essentially alleged that the Veteran’s claimed muscle pain is part of a constellation of symptoms due to an undiagnosed illness relating to his service in the Persian Gulf.  Subsequently, another VA Gulf War examination was scheduled for December 2017, but the Veteran failed to appear for the examination.  No good cause for the failure to appear has been asserted by the Veteran.  The Board finds that this examination was necessary to establish whether the Veteran has an undiagnosed illness manifested by muscle pains, or otherwise has a disability manifested by muscle pains that is related to his active service.

38 C.F.R. § 3.655(a) provides: “When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.”  Paragraph (b) provides: “When a claimant fails to report for an examination scheduled in conjunction with . . . [a] claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.”  38 C.F.R. § 3.655(b) (2018). 

The Board finds that, based on the presumption of regularity, the Veteran received notice of the examination, which presumption has not been rebutted by clear and convincing evidence.  See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (VA’s established procedure for notifying claimants of VA examinations entitles it to the presumption of regularity that VA employees properly discharged their official duty to notify a veteran of a VA examination).  

Therefore, as the Veteran failed to report for a scheduled VA examination that was necessary in reviewing his application to reopen the previously denied claim, without any good cause having been shown, the Board concludes that the application to reopen the claim for service connection for muscle pains must be denied as a matter of law.  See 38 C.F.R. § 3.655(b).  

REASONS FOR REMAND

1.  Entitlement to an evaluation in excess of 10 percent for a lumbosacral strain

2.  Entitlement to an evaluation in excess of 10 percent for a right knee strain 

3.  Entitlement to a TDIU

A June 2016 rating decision granted service connection for a lumbosacral strain disability and a right knee strain disability, and assigned 10 percent ratings (each), effective November 6, 2014.  The Veteran seeks higher initial ratings.  See Notice of disagreement, September 2016.

The Veteran was afforded VA examinations in May 2016.  Unfortunately, the Board finds these examinations are not adequate upon which the rate the disabilities because the VA examiner noted the Veteran experienced pain with weight-bearing during flare-ups but did not note the ranges of motion in both active and passive, weight-bearing and nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016) (quoting 38 C.F.R. § 4.59).  Therefore, the claims should be remanded for new examinations consistent with Correia.

The Board notes that the issue of entitlement to a TDIU has also been raised by the Veteran.  See, e.g., Correspondence, February 2018.  The Board finds that this matter is part and parcel to and intertwined with the initial rating claims.  The TDIU claim is remanded with the initial rating claims, and on remand, the Veteran should be asked to complete a Form 21-8940 showing his recent work history.  Also, completed Forms 21-4192 should be obtained from his most recent employers.

4.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for unspecified joint pain (other than lumbosacral and right knee pain), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness

The Veteran requests reopening of a previously denied claim for service connection for unspecified joint pain (other than lumbosacral and right knee pain).  For the reasons explained below, the Board finds that this matter should be remanded for the issuance of a Statement of the Case (SOC).  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

A December 1999 rating decision denied the Veteran’s claim for service connection for “joint pain.”  Service treatment records were associated with the claims file in June 2000, and a July 2000 rating decision continued the denial of the claim.  See 38 C.F.R. § 3.156(c) (2019).  The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the December 1999 or July 2000 rating decisions, which became final.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019).  

No request to reopen the claim can be found in the claims file except insofar as the Veteran claimed entitlement to service connection for “Gulf War Syndrome” on a November 2014 Form 21-526.  A June 2016 rating decision nevertheless appears to have recharacterized the November 2014 claims as including a request to reopen the previously denied claim for service connection for “joint pain.”  The June 2016 rating decision recharacterized the claim as for service connection for a lumbosacral strain and right knee strain and granted the claims.  

In September 2016, the Veteran filed a notice of disagreement as to the initial ratings for his lumbosacral and right knee disabilities, which ratings are on appeal herein.  

The same September 2016 notice of disagreement includes disagreement as to the entirety of the June 2016 rating decision, which would include the issue of entitlement to service connection for unspecified joint pain (other than lumbosacral and right knee pain).  Since the filing of the September 2016 notice of disagreement, no SOC has been issued.  Therefore, the Board finds that this claim must be remanded to the agency of original jurisdiction (AOJ) for the issuance of a SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92).  

The Board acknowledges that, on the same date as the issuance of the June 2016 rating decision, the RO issued a June 2016 Statement of the Case that includes the issue of entitlement to service connection for unspecified joint pain (apparently other than lumbosacral or right knee pain).  The Board also acknowledges that the Veteran subsequently filed a July 2016 Form 9 appeal.  However, the Board notes that the issuance of a June 2016 SOC as to this issue at that time was clearly premature and in error, as it was issued on the same date as the rating decision, and no notice of disagreement had yet been filed.  See 38 U.S.C. § 7105 (2012); see also Percy v. Shinseki, 23 Vet. App. 37 (2009) (filing of a timely notice of disagreement is mandatory for the Board’s jurisdiction).

Therefore, the application to reopen the unspecified joint pain claim will be remanded for the issuance of a SOC.  This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.

The matters are REMANDED for the following action:

1.  Schedule a new VA examination to address the current severity of the Veteran’s service-connected lumbosacral and right knee spine disabilities and claim for a TDIU.  The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.  The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing.  The examiner must explain why any of these clinical tests are not appropriate or could not be performed.  A complete rationale for any opinions expressed should be provided.

If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability.  The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain).  Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups.

The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time.  If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain).

Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has “considered all procurable and assembled data before stating that an opinion cannot be reached,” and “that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large.”  The Board may “accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed.”  See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

The examiner should also address the effect of the Veteran’s thoracolumbar spine and associated radiculopathy disabilities on his occupational functioning and activities of daily living.

2.  Ask the Veteran to complete a Form 21-8940 regarding the claimed TDIU.  Also seek a completed Form 21-4192 from the Veteran’s most recent employer(s).

3.  Send the Veteran and his representative a statement of the case (SOC) that addresses the issues of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a service connection for unspecified joint pain (other than lumbosacral and right knee pain), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness.  If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration.

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Juliano, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.