Citation Nr: 21062740 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-23 572 DATE: October 12, 2021 ORDER Since there is not new and material evidence, the petition to reopen a claim for service connection for bilateral hearing loss is denied. Since there is not new and material evidence, the petition to reopen a claim for service connection for a cervical spine disability is denied. Since there is not new and material evidence, the petition to reopen a claim for service connection for a lumbar spine disability is denied. Service connection for asthma is denied. REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a penile condition due to herbicide exposure is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), inclusive of a digestive disorder, is remanded. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an October 1986 rating decision, the local Regional Office (RO) denied the claim for service connection for a spinal condition, including as relating to the "back and cervical spine." The Veteran did not appeal that decision. 2. In a March 1994 rating decision, the RO denied the claim for service connection for bilateral hearing loss. The Veteran also did not appeal that decision. 3. The additional evidence submitted or otherwise obtained since those rating decisions is cumulative or redundant of the evidence of record at the time of those prior denials of these claims for service connection for bilateral hearing loss and for a cervical spine disability and a lumbar spine disability and does not tend to substantiate these claims or raise a reasonable possibility of substantiating them. 4. The preponderance of the evidence is against finding that the Veteran's asthma started during his service or is otherwise related or attributable to his service, including caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The October 1986 and March 1994 rating decisions that earlier considered and denied the claims for service connection for a cervical spine disability, lumbar spine disability, and bilateral hearing loss are final and binding based on the evidence then of record. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200 20.201, 20.302, 20.1103 (2018). 2. There is not new and material evidence since those decisions to reopen these claims for service connection for a cervical spine disability, lumbar spine disability, and bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are not met for entitlement to service connection for asthma. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1972 to October 1974 and from January to May 1979. In March 2020, the Board remanded several claims for service connection concerning which the Veteran had filed a timely Notice of Disagreement (NOD) but had not, in response, been provided a Statement of the Case (SOC). See, e.g., Manlincon v. West, 12 Vet. App. 238 (1999). In June 2020, on remand, a SOC was issued, and, in August 2020, the Veteran completed the steps necessary to "perfect" his appeal of those claims as concerning whether there is new and material evidence to reopen his claims for service connection for bilateral hearing loss, a cervical spine disability, and a lumbar spine disability, and for service connection for GERD and asthma. See 38 C.F.R. § 20.200 (2018). That remand also was for other needed development, including concerning the other claims also at issue in this appeal, which involved obtain outstanding VA treatment records, clarifying certain things concerning a condition being claimed and regarding the circumstances of the Veteran's purported service in Thailand, verifying that service, and then readjudicating the claims not addressed in the SOC in a Supplemental SOC (SSOC). Some of the claims now may be decided whereas others again must be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). New & Material Evidence According to the prior "legacy" legal standard, to reopen a claim that has been previously considered and denied in a decision that since has become a final and binding determination such as because it was not appealed, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). "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. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. Id. 1. Since there is not new and material evidence, the petition to reopen the claim for service connection for bilateral hearing loss is denied. 2. Since there is not new and material evidence, the petition to reopen the claim for service connection for a cervical spine disability is denied. 3. Since there is not new and material evidence, the petition to reopen the claim for service connection for a lumbar spine disability is denied. Since the last final and binding decision concerning the claim for service connection for bilateral hearing loss in March 1994, there is no additional evidence in the record tending to show the Veteran has this diagnosis and sufficient hearing loss according to 38 C.F.R. § 3.385 to be considered a "ratable" disability. Rather, while his VA treatment records include a notation of "hearing loss" referencing his medical history listed as beginning in 2000, a subsequent VA audiometric examination in 2002 resulted in findings within normal limits. There is nothing in the record since the March 1994 rating decision previously considering and denying this claim tending to indicate the Veteran has ratable bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, nor has he submitted any statements or other evidence tending to show he suffers from hearing loss because of his military service. In other words, he has not provided any further evidence tending to support his claim of entitlement to service connection for this condition, such as a new contention, a medical opinion attributing this condition to his military service, or other pertinent records tending to relate to an unestablished fact needed to substantiate this claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Therefore, as the new and material evidence standard has not been met, this claim for service connection for bilateral hearing loss cannot be reopened, and the appeal is denied. The same is true for the petition to reopen the previously denied claims for service connection for a lumbar spine disability and a cervical spine disability. The Veteran has reported experiencing ongoing back pain. However, he has related his back pain to his post-service employment so as a civilian, such as in May 2000 when he testified during his hearing before this Board concerning his claim of entitlement to special monthly compensation (SMC), attesting that he had first learned of his back condition while working at the postal service. Even if he submitted previous statements relating his back pain instead to his military service, since the last final and binding denial of this claim, he has not provided any further, or new, evidence tending to support his claim of entitlement to service connection for a lumbar spine disability or cervical spine disability, such as a new contention, a medical opinion attributing these conditions to his military service, or other pertinent records tending to relate to an unestablished fact needed to substantiate these claims. Therefore, as the new and material evidence standard has not been met, these claims for service connection for a lumbar spine disability and a cervical spine disability cannot be reopened, and these appeals also are denied. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 4. Service connection for asthma is denied. As concerning this claim, the Veteran has not provided any contentions as to how his asthma relates to his service. A review of his service treatment records (STRs) is unremarkable for any indication of asthma or respiratory-related symptoms. His post-service treatment records show a diagnosis of asthma, but these records do not in turn tend to relate his asthma to his military service. Moreover, he has not provided contentions relating his asthma to his service. A review of the post-service treatment records dated in the years immediately following the Veteran's separation from service, particularly during the 1980s, does not show complaints of treatment of asthma. Also, a November 1993 VA examination was negative for indication of asthma. While current VA treatment records demonstrate treatment for asthma, these records begin in 2003, so many decades following the Veteran's separation from active military service and without any explanation for why there is no indication of this condition during the many, prior intervening years dating back to his time in service. See Maxson v. West, 12Vet. App.453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1Vet. App.354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). The Veteran is not competent to relate or attribute his asthma to his service since he does not have the requisite medical training and expertise to give a probative opinion on this determinative issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The respiratory disease of asthma is complex, not instead merely simple, so it is not the type of condition that can be attributed to his service by way of his lay statements and testimony, alone. The question of whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, as the preponderance of the evidence is against this claim for service connection for asthma, it must be denied. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer is remanded. 2. Entitlement to service connection for a penile condition due to herbicide exposure is remanded. The Veteran contends that his prostate cancer and claimed penile condition are from his exposure to herbicides while stationed in Thailand. The Board's prior, March 2020, remand of these claims partly was to clarify certain things concerning this penile condition being claimed specifically insofar as whether it is a condition affecting the skin on the Veteran's penis or a condition unrelated to the skin, and regarding the circumstances of his purported service in Thailand, including verifying that service. In May 2020, to this end, the Veteran reported that he was stationed at a Royal Thai Air Force Base in Nam Phong, Thailand. This Air Force Base is not listed as a presumptive herbicide exposure site according to the M21-1 adjudication manual. Nevertheless, given his assertions, it is prudent to research whether he was exposed to herbicides in Nam Phong, Thailand, and, if not, a negative response must be documented in the record ruling this out. 3. Entitlement to service connection for GERD, to include a digestive disorder, is remanded. The Veteran contends that his current digestive disorder is related to his service. A STR reflects that he reported suffering from indigestion for three weeks in March 1979. Post-service treatment records, however, show a negative upper gastrointestinal series in May 1985. In June 1991, the provisional diagnosis was "rule out peptic ulcer disease, esophageal reflux." Given this documentation in service and his contentions of suffering from digestive issues since service, a VA examination is needed for a medical opinion regarding to the etiology of any current GERD and/or digestive disorder. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). 4. Whether there is new and material evidence to reopen the claim for service connection of PTSD is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder other than PTSD also is remanded. The July 2020 SSOC did not readjudicate the issue concerning whether new and material evidence has been submitted to reopen the claim for service connection PTSD, and this must occur before deciding the appeal of this claim. However, first, further development is necessary regarding the claim for service connection for an acquired psychiatric disorder other than PTSD. More specifically, a VA examination and opinion are needed to assist in determining whether the Veteran's current psychiatric disorder is related or attributable to his service since, to date, there has not been any VA examination concerning this posited correlation outside of the context of the claims specifically for PTSD. And all mental disorders that the Veteran has must be considered. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board has reviewed the two private opinions supportive of the Veteran's claim that are dated in August 2021 and May 2019. However, both opinions appear to rely on events that occurred following his two periods of active service, instead, relating to events that occurred during his time in the Air Force Reserves. Active military, naval, or air service not only includes any period of active duty (AD) but also active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury though not also disease incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident during such training. 38 U.S.C. §§ 101 (21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). This typically refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). This refers to the 12 weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Here, though, it is unclear from the record whether the events described occurred in the line of duty during a period of ACDUTRA or INACDUTRA, so further clarification from the Veteran on VA examination is needed. In that regard, neither examination appears to have included an interview with him or mental status evaluation. Significantly, both opinions rely heavily on a report of an altercation the Veteran recounted during a VA examination in May 1998 when he received a diagnosis of personality disorder and alcohol abuse disorder. In general, personality disorders are "defects" that are not "diseases" or "injuries" within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Congenital or developmental "defects," such as a personality disorders, automatically rebut the presumption of soundness and therefore are considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (finding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, "[s]ervice connection of personality disorders, whether on a direct basis or by aggravation, is...prohibited...." 61 Fed. Reg. 52,695. However, 38 C.F.R. § 4.127 provides that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected, and, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis. See VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, the Veteran's other diagnosed psychiatric disorders may provide a basis for service connection if the evidence shows these disorders are superimposed upon his diagnosed personality disorder. Consider also, however, that direct service connection for disability resulting from a claimant's alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. § 1110 and 38 U.S.C. § 105(a) either for primary alcohol use disabilities or for secondary disabilities that result from primary alcohol abuse. See Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol use disability means an alcohol use disability arising from voluntary and willful drinking to excess. Id. The Federal Circuit Court also held in Allen, however, that there can be compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen at 1381 (explaining that Veterans can only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). Thus, it is unclear how the more recent 2019 and 2021 positive private opinions relate a qualifying disability to the Veteran's service. In this regard, during the appeal period, he has not provided statements in support of his claim that his current psychiatric disorder is related to his service. Obtaining a VA examination on remand may assist in obtaining this context. 6. A TDIU is remanded. The disposition of the claims being remanded may impact the disposition of this TDIU claim, so the Board must defer considering this TDIU claim until completing the additional development being directed concerning the underlying claims. Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. Contact the appropriate service organization or other source to determine whether the Veteran was exposed to herbicides while stationed in Thailand in Nam Phong from July 1, 1973, to July 18, 1973. If a negative response is received, document this in the claims file. 2. Schedule the Veteran for a VA examination for his acquired psychiatric disorder. The examiner must review the claims file including a complete copy of this decision and remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms causing functional impairment of her earning capacity, then the examiner should consider them a ratable "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's acquired psychiatric disorder at least as likely as not related or attributable to his service, including especially to the reported altercation with his roommate that was described during a prior May 1998 VA examination and if confirmed that it occurred during a qualifying period of active military service in the line of duty (meaning while on AD, ACDUTRA or INACDUTRA)? In providing this requested opinion, also consider the Veteran's report in October 1984 of trouble sleeping in service in 1972, as well as review his history of psychiatric treatment beginning in the 1980s. 3. Also schedule the Veteran for a VA examination for his claimed digestive disability (GERD or whatever other diagnosis). The examiner must review the claims file, including a complete copy of this decision and remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of her earning capacity, then the examiner should consider them a ratable "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's digestive disorder, including GERD, at least as likely as not related or attributable to his service, including when considering the March 1979 treatment record showing indigestion for three weeks? The examiner should also consider the negative upper gastrointestinal series in 1985 and the June 1991 provisional diagnosis of "rule out peptic ulcer disease, esophageal reflux." 4. Then readjudicate the claims, including determining whether there is new and material evidence to reopen the claim for service connection for PTSD and deciding the claim of entitlement to a TDIU as well as all others that are still on appeal but undecided. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.