Citation Nr: 21063672 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-29 042 DATE: October 15, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection for diabetes mellitus is reopened; to this extent only, the appeal is granted. As new and material evidence has been received, the previously denied claim of service connection for posttraumatic stress disorder (PTSD) is reopened; to this extent only, the appeal is granted. Entitlement to service connection for PTSD is denied. REMANDED Entitlement to a disability rating greater than 10 percent for a lumbosacral spine disability is remanded. Entitlement to a disability rating greater than 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a disability rating greater than 10 percent for right knee osteoarthritis is remanded. Entitlement to a separate compensable rating for right knee instability is remanded. Whether new and material evidence has been received to reopen a previously denied claim of service connection for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a left foot disability, including as due to a service-connected right foot disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. In a rating decision issued in November 2013, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, a claim of service connection for diabetes mellitus; this decision was not appealed and became final. 2. In a rating decision issued in May 2015, the AOJ denied a claim of service connection for PTSD (which was characterized as adjustment disorder with mixed anxiety and depression); although the Veteran timely disagreed with this decision, he did not perfect an appeal, and it became final. 3. Evidence received since the November 2013 and May 2015 rating decisions, respectively, relates to unestablished facts necessary to substantiate the claims of service connection for diabetes mellitus and for PTSD. 4. The record evidence shows that the Veteran has not been diagnosed as having PTSD which is related to active service based on a corroborated in-service stressor. CONCLUSIONS OF LAW 1. The November 2013 rating decision, which denied a claim of service connection for diabetes mellitus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2020). 2. The May 2015 rating decision, which denied a claim of service connection for PTSD, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2020). 3. New and material evidence has been received since the November 2013 rating decision sufficient to reopen the previously denied claim of service connection for diabetes mellitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 4. New and material evidence has been received since the May 2015 rating decision sufficient to reopen the previously denied claim of service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1973 to December 1974. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision in which the AOJ denied, in pertinent part, the Veteran's claims for disability ratings greater than 10 percent for a lumbosacral spine disability and for radiculopathy of the right lower extremity. It also is on appeal from a September 2017 rating decision in which the AOJ denied, in pertinent part, the Veteran's request to reopen a previously denied claim of service connection for PTSD (which was characterized as an acquired psychiatric disability, previously claimed as adjustment disorder with mixed anxiety and depression/PTSD, to include as secondary to service-connected physical conditions, now claimed as MST) and also denied a claim of service connection for a left foot disability. It finally is on appeal from an April 2018 rating decision which denied the remaining currently appealed claims. Although the Veteran initially requested a Board hearing, he subsequently withdrew this request in April 2021 correspondence. The Board observes that, in a November 2013 rating decision, the AOJ denied, in pertinent part, the Veteran's claims of service connection for diabetes mellitus and for bilateral hearing loss. He did not appeal this decision and it became final. See 38 U.S.C. § 7104 (2012). In a May 2015 rating decision, the AOJ denied a claim of service connection for PTSD. This decision also was not appealed and became final. Id. He further did not submit any relevant evidence or argument within 1 year of the November 2013 or May 2015 rating decisions which would render either of these rating decisions non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for diabetes mellitus, bilateral hearing loss, and for PTSD are as stated above. Regardless of the AOJ's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. 1. Whether new and material evidence has been received to reopen claims of service connection for diabetes mellitus and for PTSD The Board finds that new and material evidence has been received sufficient to reopen the previously denied claims of service connection for diabetes mellitus and for PTSD. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that these claims be reopened in statements on a VA Form 21-526b date-stamped as received electronically by the AOJ in April 2017 (for PTSD) and on a VA Form 21-526b date-stamped as received electronically by the AOJ in March 2018 (for diabetes mellitus). New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen the previously denied service connection claim for diabetes mellitus, the evidence before VA at the time of the prior final AOJ decision in November 2013 consisted of his service treatment records, his post-service VA outpatient treatment records, and his lay statements. The AOJ noted that there was no evidence that the Veteran had active service in the Republic of Vietnam so in-service exposure to an herbicide agent could not be presumed. The AOJ also noted that the service treatment records showed no complaints of or treatment for diabetes mellitus. Nor was there evidence that diabetes mellitus developed within the first post-service year. Thus, the claim was denied. With respect to the Veteran's application to reopen the previously denied service connection claim for PTSD, the evidence before VA at the time of the prior final AOJ decision in May 2015 consisted of his service treatment records, his post-service VA outpatient treatment records, and his lay statements. The AOJ noted that there was no evidence that the Veteran experienced PTSD (which was characterized as an acquired psychiatric disability) during active service based on a review of his service treatment records. The AOJ also noted that the VA examiner opined that an acquired psychiatric disability was related to non-service-connected disabilities. Thus, the claim was denied. The Veteran disagreed with this decision in October 2015. The AOJ subsequently promulgated a Statement of the Case (SOC) on this claim in September 2016. He did not perfect a timely appeal and the May 2015 rating decision became final. The newly received evidence shows that the Veteran experiences current disability due to his diabetes mellitus and PTSD which may be related to active service. For example, his newly received voluminous post-service VA outpatient treatment records show ongoing complaints of and treatment for diabetes mellitus in recent years. He also submitted a private mental status examination dated in January 2018 and date-stamped as received electronically by VA in March 2018 in which the private clinician diagnosed the Veteran as having PTSD which is related to active service. The Board again notes that newly received evidence is presumed credible solely for the purpose of determining whether a claim should be reopened. Id. The Board notes that the Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the request to reopen his previously denied service connection claims for diabetes mellitus and PTSD, the newly received evidence relates to unestablished facts necessary to substantiate both of these claims. In summary, the Board finds that, as new and material evidence has been received, the previously denied claims of service connection for diabetes mellitus and PTSD are reopened. 2. Entitlement to service connection for PTSD The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for PTSD. He essentially contends that witnessing another service member's alleged in-service sexual assault by a drill instructor and being harassed during his time in U.S. Marine Corps boot camp by the same drill instructor who allegedly committed the sexual assault caused or contributed to his PTSD. The record evidence does not support his assertions regarding an etiological link between his claimed PTSD and active service. It shows instead that, although he has complained of and been diagnosed as having PTSD in recent years, this diagnosis is not based on a corroborated in-service stressor and is not considered a valid diagnosis of PTSD for VA compensation purposes. See 38 C.F.R. § 3.304(f). The Board notes initially that it is undisputed that the Veteran's service treatment records show no complaints of or treatment for PTSD at any time during active service. The Board also notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for PTSD. It shows instead that there is no valid diagnosis of PTSD which could be attributed to active service based on a corroborated in-service stressor. The Board acknowledges that, in statements on an April 2016 VA Form 21-0781a, the Veteran asserted that his in-service stressors included receiving his draft notice in the mail, witnessing the alleged sexual assault of another Marine Corps boot camp recruit by a drill instructor, and being harassed by the same drill instructor for the remainder of the time he was in Marine Corps boot camp. He also asserted that receiving his draft notice in the mail causes him to experience a "phobia" about picking up his mail. He further asserted that he felt guilty for not reporting the alleged sexual assault of another Marine Corps boot camp recruit by a drill instructor after he witnessed this incident and was advised by another service member to report it. The Board finds that none of the Veteran's alleged in-service stressors are capable of corroboration through the U.S. Department of Army, Records Management and Declassification Agency (RMDA) (formerly the Joint Services Records Research Center (JSRRC)) and, consequently, cannot support a valid diagnosis of PTSD which could be related to active service. The Board does not doubt that receiving a draft notice in the mail was a traumatic experience for the Veteran; however, this is an insufficient stressor to support a valid diagnosis of PTSD because it occurred prior to his entry on to active service. The Board also does not doubt that, after he entered on to active service, he found Marine Corps boot camp to be stressful. The general nature of the incidents of alleged harassment reported on the April 2016 VA Form 21-0781a, and the fact that the most serious incident (the alleged sexual assault of another Marine Corps boot camp recruit by a drill instructor) did not happen to the Veteran himself and was not reported by him at that time or subsequently even though he admitted that he was advised to do so also renders these incidents incapable of corroboration and insufficient to support a valid diagnosis of PTSD which could be related to active service. The medical evidence also does not support granting service connection for PTSD. As support for granting this claim, the Veteran and his attorney rely heavily on a private mental status examination dated in January 2018 and date-stamped as received electronically by VA in March 2018 in which the private clinician purports to diagnose him as having PTSD which is related to active service. Having reviewed this evidence, the Board finds that it is inadequate for VA adjudication purposes and cannot support granting service connection for PTSD. In the January 2018 examination report, J. A., Jr., M. A., identified himself as a licensed psychologist and stated that, although the Veteran expressed a desire to establish a diagnosis of PTSD due to military sexual trauma (MST), "he does not have MST because there was no military sexual trauma event directed toward [him]. However, he did witness [a] military sexual trauma event as it occurred to someone else." This clinician next outlined the medical records which he reviewed and questioned the value of past mental health diagnoses in the Veteran's VA outpatient treatment records and examination reports. The Veteran was divorced after 34 years of marriage but continued to live with his ex-wife with whom he had a "pretty good" relationship in a home that they were leasing to buy. He worked as a truck driver "pushing" himself at work and driving himself to exhaustion with long hours since 2012. He drove a truck 6 days a week from 14 15 hours a day and occasionally "drives 18 20 hours a day which is illegal. He states he has to do this to ward off psychological problems and ruminative thoughts." He described the in-service sexual assault of another Marine by a drill instructor which he witnessed while in boot camp and being harassed by the same drill instructor after this incident. He related most of his interpersonal problems since service to this in-service incident. Mental status examination of the Veteran in January 2018 showed he was "terse and to the point," average concentration, normal attention and psychomotor activity, relevant, coherent, and appropriate speech, somewhat impaired abstract thinking, ability to calculate within normal limits, an irritated mood which "is his usual mood," reported mood swings, temper outbursts, "attacks on others," low energy and fatigue "after I come off my driving high," feeling agitated once or twice a week, no anxiety or panic attacks, "prominent anger [and] feelings of harm toward others," reported physical assaults against others, no obsession or compulsions "other than driving," reported dissociations, detached interpersonal relationships, full orientation, "broadly intact" memory, relevant associations, normal "stream of thought," disturbed sleep "connected with his work and attempting to outrun his feelings," and a good appetite. Dr. J. A. concluded that the Veteran met the "CAPS" diagnostic criteria for a diagnosis of PTSD due to witnessing "in person trauma as it occurred to someone else and this was followed by ongoing harassment from the perpetrator." This clinician stated: That [incident] apparently aroused profound homophobic fears in the [Veteran] with a pronounced tendency toward physical attacks on others and strangers that he thinks might be gay and he is clearly a danger to these individuals. This occurs on an ongoing basis...The [Veteran's] PTSD which is clearly connected to military service witnessing trauma as it occurred to others has caused significant difficulty in his interpersonal life and performance on the job. The diagnosis was PTSD with associated chronic anger state disorder and homophobia. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the January 2018 opinion from Dr. J. A., the Board finds that it is not probative on the issue of whether the Veteran's claimed PTSD is related to active service. The Board again notes that this evidence is presumed credible only for the limited purpose of reopening the previously denied claim. The opinion from Dr. J. A. is based on what the Veteran reported concerning an alleged in-service sexual assault of another Marine Corps boot camp recruit by a drill instructor. As discussed above, this alleged in-service stressor is incapable of corroboration and cannot support a valid diagnosis of PTSD. The alleged in-service stressors also are not related to any fear of hostile military or terrorist activity such that an opinion from a medical provider alone could be sufficient to support a valid diagnosis of PTSD which is related to service. See 38 C.F.R. § 3.304(f)(3). In other words, there is no factual predicate in the record to support finding that, in fact, the alleged in-service stressor of witnessing the sexual assault of another Marine Corps boot camp recruit occurred. Dr. J. A. also did not provide "clinical data or other rationale" to support his conclusion in January 2018 that the Veteran's claimed PTSD is related to active service other than relying on what he reported concerning this alleged in-service stressor. Thus, the Board finds that the January 2018 opinion from Dr. J. A. cannot support granting service connection for PTSD. Contrary to the Veteran's lay assertions, the record evidence does not support finding that he has a valid diagnosis of PTSD which could be attributed to active service based on a corroborated in-service stressor. The diagnosis of PTSD rendered by Dr. J. A. in January 2018 is not considered valid for VA adjudication purposes because it is not based on a corroborated in-service stressor. Nor are the other alleged in-service stressors based on the fear of hostile military or terrorist activity, related to combat, or consistent with the facts and circumstances of the Veteran's active service. See 38 C.F.R. § 3.304(f). He finally has not identified or submitted any evidence demonstrating his entitlement to service connection for PTSD. In summary, the Board finds that service connection for PTSD is not warranted. REASONS FOR REMAND 1. Entitlement to disability ratings greater than 10 percent for a lumbosacral spine disability, radiculopathy of the right lower extremity, and for right knee osteoarthritis, and entitlement to a separate compensable rating for right knee instability is remanded. The Veteran contends that his service-connected lumbosacral spine disability, radiculopathy of the right lower extremity, and right knee osteoarthritis are more disabling than currently evaluated. He also contends that he is entitled to a separate compensable rating for right knee instability which is due to his service-connected right knee osteoarthritis. The record evidence shows that the most recent VA examinations for the service-connected lumbosacral spine disability and radiculopathy of the right lower extremity occurred in December 2015, almost 6 years ago. And the most recent examination for the service-connected right knee osteoarthritis and right knee instability occurred in March 2018, more than 3 years ago. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examinations, the Board finds that, on remand, he should be scheduled for updated VA examinations to address these matters. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for bilateral hearing loss is remanded. The Veteran essentially contends that new and material evidence has been received sufficient to reopen the previously denied claim of service connection for bilateral hearing loss. Unfortunately, a review of the March 2018 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) shows that the rationale provided by the VA examiner for the negative medical nexus opinion is inadequate for VA adjudication purposes. Following this examination, the VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss is related to active service. The rationale for this opinion was based on the lack of evidence in the claims file. The Board again notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The Board next notes that, once VA provides an examination to a Veteran, this examination must be adequate for VA adjudication purposes. See Barr, 21 Vet. App. at 303. Thus, the Board finds that, on remand, another opinion should be obtained which addresses this matter. 3. Entitlement to service connection for diabetes mellitus is remanded. As discussed above, the Board reopened the previously denied service connection claim for diabetes mellitus. The record evidence shows that the Veteran has complained of and sought treatment for his diabetes mellitus from VA clinicians in the decades since his service separation. To date, however, he has not been provided with an examination to address the contended etiological relationship between diabetes mellitus and active service. Thus, the Board finds that the low threshold for providing Veterans with examinations have been met and, on remand, an examination should be scheduled which addresses this matter. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 4. Entitlement to service connection for a left foot disability, including as due to a service-connected right foot disability, is remanded. The Veteran contends that he incurred a left foot disability during active service or, alternatively, his service-connected right foot disability caused or aggravated his left foot disability. The Board acknowledges that an opinion dated in May 2017 concerning the contended etiological relationship between the service-connected right foot disability and the left foot disability is associated with the claims file. Unfortunately, it appears that the May 2017 VA clinician was not asked to provide and did not provide an opinion concerning the contended etiological relationship between a left foot disability and active service on a direct service connection basis. See 38 C.F.R. §§ 3.303, 3.304. The Board notes in this regard that it is required to consider all theories of entitlement. See also Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Thus, the Board finds that, on remand, an addendum opinion should be obtained which addresses this matter. 5. Entitlement to service connection for OSA is remanded. The Veteran finally contends that he incurred OSA during active service and experienced continuous post-service disability. The record evidence shows ongoing complaints of and treatment for OSA, including the use of a continuous positive airway pressure (CPAP) machine. To date, however, he has not been provided with an examination to address the contended etiological relationship between OSA and active service. Thus, the Board finds that the low threshold for providing Veterans with examinations have been met and, on remand, an examination should be scheduled which addresses this matter. See McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected lumbosacral spine disability. 3. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected radiculopathy of the right lower extremity. 4. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected right knee osteoarthritis. As part of this examination, the clinician is asked to state whether the Veteran experiences right knee instability as a result of his service-connected right knee osteoarthritis. 5. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's bilateral hearing loss. If possible, this opinion should be provided by a clinician other than the clinician who provided the March 2018 opinion. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss is related to active service. A rationale must be provided for any opinion(s) expressed. 6. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's diabetes mellitus. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetes mellitus is related to active service. A rationale must be provided for any opinion(s) expressed. 7. Forward the claims file to the May 2017 VA clinician or another appropriate clinician for an opinion concerning the nature and etiology of the Veteran's left foot disability. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left foot disability is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected right foot disability caused or aggravated a left foot disability. A rationale must be provided for any opinion(s) expressed. 8. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran's OSA. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that OSA is related to active service. A rationale must be provided for any opinion(s) expressed. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.