Citation Nr: 21076494 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-28 457 DATE: December 23, 2021 ORDER New and material has not been received to reopen service connection for degenerative disc disease of the lumbar spine. New and material evidence has been received to reopen service connection for depressive disorder. Service connection for depressive disorder is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. In the May 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for degenerative disc disease of the lumbar spine on the basis that the evidence did not show an in-service incurrence of the degenerative disc disease. 2. Evidence received since the May 2010 rating decision does not relate to a previously unestablished fact of either in-service incurrence or of nexus to service. 3. In the May 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a psychiatric disability, including posttraumatic stress disorder (PTSD), on the basis that the evidence did not show a current disability. 4. Evidence received since the May 2010 rating decision relates to the previously unestablished fact of a current disability of depressive disorder. 5. There is a current disability of depressive disorder. 6. The depressive disorder did not have its onset during service and is not otherwise related to active duty service. 7. The Veteran does not have a current disability of bilateral hearing loss. CONCLUSIONS OF LAW 1. The May 2010 rating decision denying service connection for degenerative disc disease of the lumbar spine became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has not been received to reopen service connection for degenerative disc disease of the lumbar spine. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The May 2010 rating decision denying service connection for a psychiatric disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence has been received to reopen service connection for depressive disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 6. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Coast Guard during the Vietnam Era and Peacetime from January 1975 to April 1976. On May 20, 2009, the Veteran filed claims for service connection for PTSD, a psychiatric disability, and a lower back problem. In a May 2010 Rating Decision, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD/psychiatric disability and a lower back disability. In November 2012, the Veteran requested the issues of a psychiatric disability and a lower back disability be reopened, and a new claim for service connection for hearing loss be considered. Reopening of issues of a psychiatric disability and lower back disability were denied on the basis of no new and material evidence, and service connection for hearing loss was denied on the merits in an October 2013 Rating Decision. The Veteran filed a Notice of Disagreement in October 2014, and a Statement of the Case was issued in May 2016. The issue of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is not on appeal; moreover, as the Veteran has no service-connected disabilities, no TDIU claim has been raised as a matter of law or can be raised. A supposedly raised TDIU was purportedly denied in the May 2010 Rating Decision; however, as there were in fact no service-connected disabilities at that time, and there are still no service-connected disabilities, it is a legal impossibility to infer a TDIU claim because, as a matter of law, even TDIU consideration is not available unless and until there is at least one service-connected disability. The effect of the May 2010 rating decision was a legal denial of a purported TDIU claim because there were no service-connected disabilities. While in an October 2014 notice of disagreement on other issues (not TDIU), the Veteran wrote TDIU, listing TDIU on the NOD form was of no legal effect because there had been no TDIU adjudication to appeal and because there were in fact no service-connected disabilities upon which a TDIU claim could be based. The Veteran filed a purported TDIU claim in October 2014, which was denied as a matter of law in a February 2015 rating decision as a matter of law, finding that there were no service-connected disabilities upon which a TDIU could be based. The Veteran did not appeal the February 2015 rating decision denial of TDIU as a matter of law. The Veteran requested a hearing before the Board. A hearing was scheduled for November 2021. The Veteran did not appear for the hearing, and has not provided any explanation for not attending the requested hearing. New and Material Evidence A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 C.F.R. § 20.1103 (2018). An appeal is perfected when a claimant, or his or her representative, files a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. 38 C.F.R. § 20.302 (2018). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Accordingly, if new and material evidence is submitted within the one-year appeal period, the decision is not final. New evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components: (1) that the new evidence pertains to the reason(s) for the prior final denial, and (2) that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id., at 118. 1. Reopening service connection for degenerative disc disease of the lumbar spine is denied. The initial rating decision was issued in May 2010, finding that the evidence did not show an in-service incurrence of the degenerative disc disease of the lumbar spine. The Veteran did not enter a notice of disagreement or supply additional evidence within one year of the decision, and no new and material evidence was submitted within one year after the May 2010 rating decision; therefore, the decision became final. In November 2012, when the Veteran filed the claim to reopen service connection. See November 2012 Claim for Compensation. After reviewing the evidence received since the May 2010 rating decision, and presuming the credibility of the evidence for the limited purpose of reopening, the Board finds that new and material evidence has not been received to reopen service connection for degenerative disc disease of the lumbar spine. The only potentially relevant evidence received since the 2010 rating decision includes a VA examination performed in October 2013, which confirmed a previous diagnosis of degenerative disc disease of the lumbar spine. The examination did not contain any evidence that might serve to prove that the Veteran incurred the back injury in service: instead, the examination confirmed what the evidence of record had previously showed, which was that the Veteran was first diagnosed with a herniated disc in 1987 (11 years after service), and first reported experiencing chronic back pain after a motor vehicle accident in 2000. The evidence received since the 2010 rating decision does not raise a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has not been received to reopen service connection for degenerative disc disease of the lumbar spine. 38 C.F.R. § 3.156(a). 2. Reopening service connection for depressive disorder is granted. A rating decision was issued in May 2010, finding that the evidence did not show a current psychiatric disability, including PTSD. The Veteran did not enter a notice of disagreement or supply additional evidence within one year of the decision, and new and material evidence was not submitted within one year after the May 2010 rating decision; therefore, the May 2010 rating decision became final. In November 2012, the Veteran filed a claim to reopen service connection. See November 2012 Claim for Compensation. After reviewing the evidence received since the February 2010 rating decision, and presuming the credibility of the evidence for the limited purpose of reopening, the Board finds that new and material evidence has been received to reopen service connection for a psychiatric disability. A VA examination performed in October 2013 diagnosed opiate dependence, benzodiazepine dependence, and depressive disorder. As the VA examination is new to the record, and describes a current psychiatric disability of depressive disorder for which service connection is possible, the examination raises a reasonable possibility of substantiating the claim. Direct service connection for drug dependence is precluded as a matter of law, so the drug dependency diagnoses are not material evidence for purposes of reopening this claim. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.301 (no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs). For these reasons, the Board finds that new and material evidence has been received to reopen service connection for depressive disorder. 38 C.F.R. § 3.156(a). 3. Service connection for depressive disorder is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. No compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.301. The Veteran contends that he currently has a psychiatric disorder (including PTSD) that was caused by exposure to the corpses of the wreck of the S.S. Edmund Fitzgerald, which the Veteran claims his ship was assigned to salvage. See August 2008 VA Treatment Records. The evidence shows a current disability of depressive disorder. In October 2013, the diagnoses included opiate dependence, benzodiazepine dependence, and depressive disorder. As substance abuse disorders cannot be service connected on a direct basis, only the depressive disorder is being considered for service connection. 38 U.S.C. §§ 1110, 1131 (no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs). After weighing the evidence, lay and medical, the Board finds that the weight of the evidence shows that the depressive disorder did not have its onset during service and is not otherwise related to active duty service. The service personnel records reflect that the Veteran was given an administrative discharge from the Coast Guard based on a diagnosis of passive-aggressive personality disorder. Under 38 C.F.R. § 4.127, personality disorders are not diseases or injuries for compensation purposes. See also 38 C.F.R. § 3.303(c) (universally recognized medical principles constitute clear and unmistakable proof, and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary, such that personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin); 38 C.F.R. § 4.9 (personality disorders are not disease or injuries in the meaning of applicable legislation for disability compensation purposes). During service, the Veteran was examined by psychiatric professionals for the personality disorder. The service treatment records, which appear to be complete, show psychological symptoms attributed only to the personality disorder, and not to any acquired psychiatric disorder. The Veteran was hospitalized for suspected substance abuse problems in December 1975. This hospitalization was attributed to adjustment problems stemming from the personality disorder in service treatment records from March 1976, resulting in the administrative discharge. Absent these treatments, the service treatment records do not contain any complaints, symptoms, or treatment of depression or other psychiatric disability. To the extent the evidence shows suspected substance abuse during service, such action, even if shown to be a confirmed event, cannot as a matter of law constitute an "event" for service connection purposes because substance abuse disorders cannot be service connected on a direct basis. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.301. The Veteran's assertion that was made during this claim that he saw burned corpses during salvage of the Edmund Fitzgerald with his unit in service is inconsistent with other, more probative evidence of record, so is not credible. In May 2010, VA determined through service record research that the ship and station the Veteran was assigned to was never detailed to search for survivors or aid in the recovery of the Edmund Fitzgerald. See May 2010 VA Memorandum. In the October 2013 VA examination, the examiner opined that the current psychiatric issues are most likely connected to the Veteran's long history of (non-service-related) substance abuse. Consistent with this opinion are VA hospitalization notes from 2008 where the Veteran claimed suicidal ideation after suffering severe withdrawal symptoms from heroin. A statement from a private physician was submitted in November 2015. The physician indicated that the Veteran had PTSD; however, the physician does not explain the factual or medical basis for this determination, and does not indicate that the PTSD diagnosis was based on the requisite criteria from the DSM-5. Moreover, as there is no corroborated stressful event shown by the evidence of record, such purported PTSD diagnosis is necessarily based on an inaccurate factual assumption of the occurrence of a stressful event during service; therefore, the diagnosis and any stated or implied opinion that PTSD is related to service is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for service connection for depressive disorder. For these reasons, the appeal must be denied. 4. Service connection for bilateral hearing loss Hearing loss is a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as hearing loss become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran contends generally that he has hearing loss caused by service. See November 2012 Claim for Compensation; October 2014 Notice of Disagreement. After weighing the evidence, lay and medical, the Board finds that the Veteran does not have a current disability of hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. None of the medical records indicate that the Veteran has any difficulty with hearing or show or suggest audiometric measures of current hearing loss disability. The single lay statement submitted on the Veteran's behalf, by his ex-wife, does not mention hearing loss. The private physician's statement noted above also does not mention hearing loss. The record shows no audiometric finding Hertz testing or speech recognition scores that approximates the criteria for a disability of hearing loss under 38 C.F.R. § 3.385. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Thus, in the absence of competent evidence of a current disability of hearing loss under 38 C.F.R. § 3.385, it is unnecessary to address the remaining elements of the claim for service connection. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.