Citation Nr: 21076112 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-36 609 DATE: December 22, 2021 ORDER Service connection for an acquired psychiatric disorder, to include depression and an unspecified anxiety disorder, is granted. Entitlement to service connection for hepatitis C is denied. Service connection for sleep apnea is granted. As new and material evidence to reopen the claim has not been received, the petition to reopen the issue of entitlement to service connection for seizures is denied. REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for an eye condition is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The evidence supports a finding that the Veteran has an acquired psychiatric disorder that is attributable to his in-service experiences. 2. The weight of the evidence is against finding a nexus between any in-service event and the Veteran's current diagnosis of hepatitis C. 3. The evidence supports a finding that the Veteran's sleep apnea is related to his service-connected lumbosacral strain. 4. In an October 1998 decision, the Board denied entitlement to service connection for a seizure disorder. 5. The evidence associated with the claims file subsequent to the October 1998 denial consists of evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for seizures. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for an acquired psychiatric disorder, to include depression, have been met. 38 U.S.C. §§ 1101, 1131, 1154, 5102, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The evidence received since the October 1998 denial is not new and material, and the claim for service connection for seizures is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1982 to June 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This claim was previously before the Board in November 2018, at which time it was remanded for further development. The Board notes that the issue on appeal was characterized as entitlement to service connection for posttraumatic stress disorder (PTSD). However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for an acquired psychiatric disorder, to include depression E. F. submitted a statement in March 2016 indicating that she and the Veteran were childhood friends. When he returned from service, E. F. described the Veteran as "a completely different person." He was no longer "fun spirited;" rather, he returned from service a moody, withdrawn person. Currently, the Veteran liked to be alone and would frequently sit in the car instead of socializing whenever he left the house. His fiancé would often come to family functions alone because she could not convince the Veteran to leave the house. Dr. H. H.-G. submitted a private disability benefits questionnaire (DBQ) in October 2016 and noted diagnoses of an unspecified anxiety disorder and moderate opioid use disorder. Based on the results of the examination, she concluded that the Veteran's unspecified anxiety disorder more likely than not began in service, continued uninterrupted to the present and was aggravated by his service-connected lumbosacral strain. The Veteran received a VA PTSD examination in August 2019 and the examiner found that his symptoms did not meet the diagnostic criteria for PTSD. Rather, he was diagnosed with opiod substance abuse and antisocial personality disorder. The Veteran reported serving from 1981 to 1983; his records showing service for two months from April 1981 to June 1981 were incorrect. During service, the Veteran indicated that he was subjected to hazing and was "in contact with hostile Cubans and other hostiles" in Grenada. He also indicated he served in Beirut where he saw the embassy and barracks go down and "pulled bodies out, and rescued people in that rubble." The examiner noted that there were no reports, files, records, or any other indication that the Veteran served any time in the military other than the time listed on his Certificate of Release or Discharge from Active Duty (Form DD-214). Furthermore, his reports of activities in Grenada and Beirut were entirely false and fabricated. The Veteran reported that his drug use began before service, and there was no indication that the two months in basic training impacted this pre-existing drug use in any way. Therefore, the examiner opined that the Veteran's diagnoses of opioid substance abuse and antisocial personality disorder were not related to service. Dr. K. G. submitted a private DBQ in April 2021 and noted a diagnosis of unspecified depressive disorder and an unspecified opioid-related disorder. Following an interview with the Veteran, she concluded that it was more likely than not that the Veteran's conditions were caused by his service-connected back condition. Dr. K. G. concurred with previous examiners and found the Veteran to be a poor historian but noted that his self-report of his back injury had been consistent. He indicated that his back pain caused depression and loss of confidence; he aspired to a career in the military but was discharged after a short time following his fall on wet rocks. While being treated for his back in the hospital, the Veteran was given pain medication that led to a drug addiction. The Board finds the October 2016 and April 2021 private DBQs highly probative and concludes that service connection for an acquired psychiatric disorder, to include depression and an unspecified anxiety disorder, is warranted. The examiners considered the Veteran's history and in-service experiences and provided a thorough rationale for their conclusions. The August 2019 VA examiner's opinion is of diminished probative value, as the examiner did not consider the competent anxiety diagnosis made in October 2016. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Entitlement to service connection for hepatitis C An October 2000 VA treatment record indicates that the Veteran reported first using heroin at age eight. By his teenage years, he was using heroin daily. Although he stopped during high school to play sports, the Veteran returned to daily heroin use while in the military. The daily pattern had continued to the present time, and he endorsed intravenous (IV) drug use. A January 2001 VA treatment record reflects that the Veteran was a 37-year-old heroin addict for the last 25 years with elevated liver enzymes. Testing for hepatitis was subsequently ordered and the Veteran tested positive for hepatitis C in August 2001. The Veteran received a VA examination in August 2019 and the examiner noted the diagnosis of hepatitis C. The Veteran reported that he received a blood transfusion while in the Reserves after he was shot in his left leg during combat activity. Based on the results of the examination, the examiner concluded that the condition was less likely than not incurred in or caused by service. Based on the Veteran's reports, he probably contracted the condition from the blood transfusion, but he was not in active duty status. The examiner also noted a history of polysubstance abuse and IV drug use. At the outset, the Board notes that a formal finding on the unavailability of records was issued by VA in February 2008, indicating that the request for the Veteran's official military personnel file was unavailable for review. Then, in June 2019, the National Personnel Records Center (NPRC) conducted an extensive and thorough search of the records among their holdings. They were unable to locate the Veteran's personnel file and concluded that the records either do not exist or the records were not located at the NPRC. The Board notes that the Veteran has been an inconsistent historian with regards to his service. There is no evidence that the Veteran served beyond the two months listed on his Form DD-214. The available records reflect that the Veteran sustained an injury to his back in April 1982 and received a 3 on his physical profile in May 1982. This injury led to his subsequent discharge in June 1982. As such, the Board concludes that the Veteran did not have additional service in the Reserves, nor did he receive a gunshot wound to the leg that would require a blood transfusion at this time. The available medical evidence reflects that the Veteran was an IV drug user for most of his life, and the medical evidence in the record shows that such activities carry a high risk of transmission of hepatitis C. In light of the Veteran's drug history and the finding that the Veteran did not receive a blood transfusion due to a gunshot wound during Reserve service, the Board finds that service connection for hepatitis C is not warranted. Accordingly, because the evidence preponderates against the claim of service connection for hepatitis C, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Entitlement to service connection for sleep apnea Dr. S. E. submitted a private Disability Benefits Questionnaire (DBQ) in March 2021 and noted a diagnosis of obstructive sleep apnea from a September 2014 sleep study. He further noted the Veteran's service-connected lumbosacral strain and the chronic pain caused by this condition that required narcotic pain medications. Dr. S. E. indicated that long-term use of pain medications "causes, precipitates, or exacerbates sleep disordered breathing." He cited several studies, including research that indicated "long-term use of opioid-based medications increases the risk of central sleep apnea by 50%." Based on the examination and his research, Dr. S. E. concluded that the Veteran's sleep apnea was caused and permanently aggravated by a combination of chronic back pain and use of narcotic and sedative medications to manage the pain. The Board finds the March 2021 private DBQ highly probative and concludes that service connection for sleep apnea is warranted. The examiner considered the Veteran's history and provided a thorough rationale for his conclusions. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. New and Material Evidence Service connection for seizures was initially denied in an October 1998 decision, within which the Board found that the Veteran had not presented medical evidence linking the current seizure disorder to service. Without such competent evidence of linkage, the Board concluded that the claim was not well grounded. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The pertinent new evidence added to the record since the October 1998 Board denial includes VA treatment records from the VA Medical Center in Richmond, Virginia. A December 2019 routine video electroencephalogram was abnormal and there were features indicative of left anterior temporal seizure risk. The Veteran was counseled, however, that the origin of his last event of concern was unknown and there was very limited historical information as well as semiology to suggest epileptic seizures. The VA treatment records from the Richmond VA medical Center are new evidence in that they were not previously of record. However, the newly submitted evidence does not show that the Veteran's seizure disorder is related to his time in service. Hence, the evidence is not material for purposes of reopening the claim. Absent evidence of a link between the seizure disorder and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for a seizure disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for lumbosacral strain Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran received a VA examination of his back in October 2011. The Board has reviewed that examination report and notes that it is not adequate, as it does not appear that any passive, weight-bearing and nonweight-bearing range of motion testing, was conducted at that time. Consequently, although an additional examination was provided in August 2019, the Board finds that further remand is necessary for another VA examination so that the examiner can include an estimate as to those measurements for October 2011. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. Entitlement to service connection for a bilateral foot condition Entitlement to service connection for an eye condition As the Veteran's medical records establish diagnoses or persistent symptoms of a bilateral foot condition and eye condition, and there is an indication, through assertions and testimony of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran VA examinations to determine the nature and etiology of any bilateral foot condition and eye condition. Entitlement to service connection for headaches The Veteran received a VA examination in October 2018 and the examiner noted subjective reports of headaches since 1982 but concluded that there was no chronic headache diagnosis. She found that the symptoms were subjective only and the objective examination was normal. The Board finds the examiner's conclusion inadequate; to this point, the Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have firmly held that lay evidence concerning symptoms experienced by the Veteran through their symptoms cannot be discounted based on a lack of corroborating objective medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Furthermore, the October 2018 examiner indicated that the Veteran experienced headache pain. Specifically, there was pulsating or throbbing head pain and pain on both sides of the head. Pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, in light of Saunders and Buchanan, a remand is necessary to obtain an additional VA examination. The examiner is directed to report the Veteran's current symptomatology and to address whether the Veteran's reported pain results in any functional impairment. Saunders, 886 F.3d at 1362. Entitlement to TDIU Regarding the claim for entitlement to a TDIU, this issue is intertwined with the claims remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination so as to determine the current severity of his lumbosacral strain disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The thoracolumbar spine should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to discuss and determine whether the Veteran's range of motion results from the October 2011 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed bilateral foot condition. The examiner should review the claims folder and note such review in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently-diagnosed bilateral foot condition had its onset or is otherwise related to the Veteran's military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed eye condition. The examiner should review the claims folder and note such review in the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently-diagnosed eye condition had its onset or is otherwise related to the Veteran's military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed headache disorder. The examiner should review the claims folder and note such review in the examination report. a. If there is no diagnosed headache disorder, the examiner is asked to opine whether the Veteran's headache pain reaches the level of a functional impairment of earning capacity so as to constitute a current disability. (Continued on the next page) b. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any headache pain or diagnosed headache disorder had its onset or is otherwise related to the Veteran's military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. A. HODZIC Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.