Citation Nr: 21007250 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-44 711 DATE: February 9, 2021 ORDER New and material evidence having been received, the claim for service connection for a psychiatric disability, to include depression/anxiety, obsessive compulsive disorder (OCD), and chronic adjustment reaction, is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for alcohol and drug dependence is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for a sleep disorder is reopened; to this extent only the claim is granted. Entitlement to service connection for a right foot disability, to include pes planus, is denied. Entitlement to service connection or a left foot disability, to include pes planus, is denied. Entitlement to service connection for chronic sinusitis is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a psychiatric disability, to include depression/anxiety, OCD, and chronic adjustment reaction, is remanded. Entitlement to service connection for alcohol and drug dependence is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a cognitive deficit disorder, claimed as decreased concentration, attention deficit hyperactivity disorder, and memory loss, is remanded. Entitlement to service connection for chronic headaches is remanded. Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code, is remanded FINDINGS OF FACT 1. In a rating decision in April 2015, the local regional office (RO) considered and denied the Veteran's claim for service connection for a psychiatric disability then characterized as depression and anxiety, as well as his claims for alcohol and drug dependence and a sleep disorder. He did not appeal that decision. 2. Additional evidence since received, however, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate these claims. 3. The Veteran is not shown to have a right foot disability. 4. His left foot disability initially manifested years after his service and is not related or attributable to his service. 5. His sinusitis was not shown in service or for many years thereafter, and there is no probative (meaning competent and credible) evidence or opinion suggesting there is a relationship or correlation (i.e., “nexus”) between his chronic sinusitis and his service. CONCLUSIONS OF LAW 1. The April 2015 rating decision previously considering and denying service connection for a psychiatric disability, claimed as depression and anxiety, and for alcohol and drug dependence and a sleep disorder, is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. But there is new and material evidence since that decision to reopen these claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for chronic sinusitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1981. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified in support of these claims during a hearing before the undersigned Veterans Law Judge at the Board’s offices in Washington, DC (Central Office (CO) hearing). A transcript of the hearing is of record. In November 2019, the Board expanded the Veteran’s claim for service connection for a psychiatric disability, initially claimed as anxiety and depression, to include additional psychiatric symptoms and disorders such as OCD and adjustment reaction. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Also in November 2019, the Board remanded the claims, all of them, back to the Agency of Original Jurisdiction (AOJ) for additional development – namely, to obtain the Veteran’s records from the Social Security Administration (SSA) as well as his VA outpatient records from the Perry Point medical facility dated from 1998 to 2003. These records since have been obtained and associated with the claims file, so there has been compliance with these remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Still more development is required, however, so, after reopening claims based on new and material evidence, the Board is remanding those claims back to the AOJ, also several of the other claims, but as well conversely denying certain claims.   New and Material Evidence Psychiatric Disability, Alcohol and Drug Dependence, and a Sleep Disorder Laws and Regulations Generally, a claim that has been denied in a final and binding rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 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. 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed – unless it is inherently or patently not credible or a person is making an assertion that they are not competent to make. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996).   Analysis The basis of the final adverse rating decision in April 2015 regarding the denial of service connection for a psychiatric disability – then claimed as depression and anxiety, as well as for alcohol and drug dependence and for a sleep disorder, was that the evidence then of record did not support a link between these claimed disabilities and the Veteran’s military service. Evidence on file at that time included his Service treatment records (STRs) and VA treatment records. New evidence has been received since that April 2015 rating decision, however, which goes to an essential element of establishing service connection, i.e., nexus evidence, and is thus relevant and probative to these claims. In this regard, the Veteran testified in June 2019 that he felt depressed in service and began abusing substances at that time to cope and that his substance abuse and depression are interrelated. He also testified that he had a problem waking up in the mornings in service. In addition, a medical statement was received in January 2021 from a private physician, Dr. Cesta, who opined that the Veteran developed major depressive disorder in service with a concomitant substance abuse disorder. He also relayed the Veteran’s report of persistent insomnia during the depressive episodes. This evidence tends to establish the required correlation between these claimed disabilities and the Veteran’s service so is sufficient to reopen these claims. Accordingly, the appeal to this extent is granted – subject to the additional development of these claims that will occur on remand before readjudicating them on their underlying merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases, including arthritis, are considered chronic, per se, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Analysis 1. Disabilities of the Right and Left Feet The Veteran testified that he wore orthopedics growing up and was told it was because he had no arches. He said that he had foot problems in service related to wearing improperly fitting boots. He explained that his boots were uncomfortable and that his feet were always hurting. The Veteran denied fallen arches on a June 1979 prescreening report for Army recruitment, but he reported “foot trouble” on a June 1979 Report of Medical History at enlistment. There is a notation on this record of “arthritis feet”, but no indication that x-rays were performed. He was found to have a normal clinical evaluation of his feet during his June 1979 enlistment examination. Other than the June 1979 Report of Medical History, his STRs do not contain any complaints or diagnoses referable to his feet. He did not undergo a separation examination. His military service ended in July 1981. VA outpatient records beginning in June 1998 do not contain complaints or diagnoses related to the Veteran’s feet. These records include a March 2015 record from the primary care clinic that lists his then active problems, but it does not include anything referable to his feet. Moreover, during this evaluation, he denied experiencing any swelling of his feet or ankles. There is also a VA foot examination report in March 2016 wherein the examiner concluded that the Veteran did not have a foot disability. Examinations findings, including foot x-rays, were unremarkable. After examining the Veteran and reviewing his claims file, the examiner opined that the Veteran did not then presently have a bilateral (left and right) foot disability. SSA records include a May 2017 private orthopedic consultation report showing the Veteran sustained right knee and left foot injuries at work in November 2016 when the truck he was driving rolled over on the driver’s side. He was medevaced by helicopter to a shock trauma unit and given an impression of status post fracture left fifth metatarsal neck and third toe proximal phalanx. This report shows he denied sustaining any injuries or having any symptoms referable to his left foot prior to that November 2016 intervening (“intercurrent”) injury at his civilian job. Although the Veteran reported a history of “foot trouble” on the June 1979 Report of Medical History with a notation of “feet arthritis”, there was no x-ray evidence of arthritis and he was found to have a normal clinical evaluation of his feet during his June 1979 enlistment examination. Accordingly, it must be presumed he did not have any pre-existing foot disability when beginning his service, in other words, there is a presumption of soundness when he entered service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also 38 C.F.R. § 4.71a, Diagnostic Code 5003, requiring radiographic (x-ray) confirmation of arthritis. In specific regard to the Veteran’s right foot, as noted, an essential element for establishing service connection is competent evidence of a current disability. Shedden, supra; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has clarified, however, that this current disability requirement is satisfied if the Veteran has had the claimed disability at any time since filing the claim, even if it since has resolved. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, though, as the evidence of record establishes that the Veteran has not been diagnosed as having a right foot disability at any point since he filed his claim for service connection in June 2016, or even contemporaneous to that, the preponderance of the evidence is against service connection for a right foot disability. While his opinion that he has a right foot disability has been considered, he has not been shown to have the medical expertise to self-diagnose a right foot disability. A foot disability such as arthritis requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing, specifically X-rays and radiologic imaging, showing degenerative changes in the right foot. Therefore, this determination is beyond lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The probative weight goes to the March 2016 VA examiner's finding that the Veteran did not have a foot disability. X-rays performed at that time were unremarkable. Moreover, the lack of functional impairment shown with respect to the Veteran’s right foot does not warrant further consideration of a right foot disability based on subjective pain. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Inasmuch as the weight of evidence is against an essential element of this claim, i.e., the existence of a present right foot disability, the claim must be denied. Shedden, 381 F.3d at 1163. With respect to the left foot, also as noted, an essential element for establishing service connection is a causal relationship (“nexus”) between a present disability and a disease or an injury incurred or aggravated during service. Shedden, supra; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). While the Veteran was found post-service to have a left foot disability diagnosed as status post fracture of the left fifth metatarsal neck and third toe proximal phalanx, the evidence does not relate it to his service. Rather, per the private orthopedic evaluation report in May 2017, it is the result of a post-service (i.e., “intercurrent”) work injury that he sustained in November 2016 at his civilian job. This is consistent with the fact that the medical evidence on file prior to November 2016, including VA treatment records and the March 2016 VA examination report, do not show treatment or a diagnosis referable to his left foot. His opinion that he has a left foot disability because of his service is inconsistent with his report at the May 2017 evaluation when he contrastingly denied having any prior left foot injuries or symptoms until that November 2016 intervening injury. This inconsistency diminishes or tends to undermine the credibility of his opinion. Moreover, inasmuch as the weight of evidence is against an essential element of this claim, i.e., competent evidence of a causal relationship ("nexus") between a current left foot disability and a disease or an injury incurred or aggravated during his service, this claim must be denied. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine is not for application, and these claims for service connection for disabilities of the right and left feet are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Sinusitis A Report of Medical History in June 1969 notes that the Veteran had mild hay fever. He was found to have a normal clinical evaluation of the sinuses at his June 1969 enlistment examination, and his service treatment records do not show any complaints or findings related to sinusitis. He did not undergo a separation examination. VA treatment records are on file as early as 1998, but they do not document sinusitis or related symptoms until January 2008. In this regard, the January 2008 record shows that the Veteran reported to the emergency department complaining of a two-week history of congestion and a one-day history of a dry cough. He denied environmental allergies, but he said that he worked with drywall and was exposed to a large amount of dust particles. He was assessed as having acute sinusitis. An October 2008 record similarly shows that the Veteran was seen in the emergency department with symptoms that were consistent with acute sinusitis. A December 2008 record notes that the Veteran had had several sinus infections the past year and it contains a diagnosis of recurrent sinusitis. The Veteran testified in June 2019 that he had sinus surgery, but he did not submit any information or records related to the surgery. In short, there simply is no competent, credible and therefore ultimately probative evidence of a specific service injury or disease to which the Veteran’s sinusitis, first noted and diagnosed decades after service, is related to service. This is so even considering the low standard to trigger VA's duty to provide an examination and/or medical opinion. See Locklear v. Nicholson, 20 Vet. App. 410 (2006). But see also, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). In summary, the McLendon threshold requirements cited above must be satisfied before VA is obliged to provide an examination or to obtain an opinion for a service connection claim, and in this particular case such requirements are not met. Id.; McLendon, supra. Finally, as for the Veteran's own assertions purporting to relate his current sinusitis to service, the Board acknowledges that as a layperson, he is certainly competent to attest to matters within his own personal knowledge, such as symptoms experienced (see, e.g., Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005)), and may opine as etiology of some simple disabilities, such as those observable or otherwise perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring)). However, the matters of diagnosis and etiology of the medically complex disability here at issue are based on internal processes not observable to the human eye or otherwise perceived through the senses; hence, questions of diagnosis and etiology of such a disability are only within the province of individuals with special knowledge, training, and experience. See Jandreau, 492 F.3d at 1377, n. 4 (Fed. Cir. 2007). As the Veteran is simply not shown to have such special knowledge, training, and experience, his assertions as the etiology of his sinusitis is not competent, and thus, not probative. Accordingly, in this case, the Veteran cannot establish his claim based on such lay assertions, alone. Inasmuch as the weight of evidence is against an essential element of this claim, i.e., competent evidence of a causal relationship ("nexus") between current chronic sinusitis and a disease or injury incurred or aggravated during service, the claim must be denied. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not for application and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107(b). REASONS FOR REMAND Service Connection for a Psychiatric Disability/Alcohol and Drug Dependence/Sleep Disorder/Cognitive Deficit Disorder Turning to the merits of the now reopened claims for service connection for a psychiatric disability, to include depression/anxiety, OCD, and chronic adjustment reaction, and for alcohol and substance dependence and a sleep disorder, together with his claim for service connection for cognitive deficit disorder, the Board finds that additional development is warranted before fully informed decisions can be made. The Veteran denied having a nervous condition on a June 1979 prescreening report for Army recruitment, but he reported a history of depression or excessive worry on a June 1979 Report of Medical History listed which was described as occasional worry and “OCD”. However, he was found to have a normal clinical psychiatric evaluation at his June 1979 enlistment examination. Pertinent law and regulations provide that a history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 38 C.F.R. § 3.304(b)(1). Rather, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. The Veteran asserts via his statements and hearing testimony that he began having depressive symptoms in service and that these symptoms have continued ever since. He also asserts that his depressive symptoms, substance abuse disorder and sleep disorder are related, and he requested that he be afforded a VA examination at the Board hearing. In consideration of his assertions, together with his post service diagnoses of major depressive disorder, alcohol and drug abuse, generalized anxiety disorder, sleep disturbance and cognitive deficits, and Dr. Cesta’s February 2021 opinion linking these disorders to service, the evidence is sufficient to afford the Veteran a VA examination. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Deferred Claim for Service Connection for a Headache Disability Dr. Cesta reported in January 2021 that the Veteran had migraine headaches related to his depression and anxiety. As the Veteran’s claim for service connection for a psychiatric disability, to include depression and anxiety, may have a significant impact on his application to reopen his claim for service connection for a headache disability, this latter issue must be deferred pending resolution of the service connection claim for a psychiatric disability. See 38 C.F.R. § 3.310; Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Deferred Claims to Reopen Service Connection for Hypertension and Hepatitic C and for DEA Benefits In the initial, final denial of service connection for hypertension in April 2015, the AOJ denied the claim on the basis that the disability had been diagnosed many years after service and was not shown to have been incurred in or caused by service. Recently, however, in June 2019, the Veteran testified that he thinks that his depression and sleep impairment raised his blood pressure readings and caused his hypertension. As his claims for service connection for a psychiatric disability, to include depression, and a sleep disorder are currently pending and may have a significant impact on his application to reopen his claim for service connection hypertension, this latter issue must be deferred pending resolution of the service connection claims. See 38 C.F.R. § 3.310; Harris, 1 Vet. App. at 183. Similarly, as the resolution of the Veteran’s pending claim for service connection for alcohol and drug dependence can significantly impact the outcome of the application to reopen the claim for service connection for hepatitis C, this latter claim must be deferred pending resolution of the claim for service connection for alcohol and drug dependence. Id. The existence of a permanent and total disability rating is a requirement for eligibility for DEA benefits. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.807(a), 21.3021. Accordingly, this issue too must be deferred pending resolution of the pending claims above as resolution of such claims could significantly impact the claim for DEA benefits. Harris, 1 Vet. App. at 183. Lastly, any pertinent, outstanding VA treatment records should be obtained and associated with the Veteran's electronic claims file. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159. Accordingly, these claims are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to present. Schedule the Veteran for a VA psychiatric examination for his claimed disabilities – to include depression and anxiety, OCD, adjustment reaction, cognitive deficit disorder, sleep disturbance and alcohol and drug dependence. The examiner must review the claims file. The examiner is asked to clarify the Veteran’s psychiatric diagnoses and provide a response to the following: Are any diagnosed disability(ies) at least as likely as not (50% degree of probability or higher) related to service or proximately related to, caused by, or aggravated by another disability that, itself, was caused or aggravated by the Veteran’s service. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability(ies) is(are) known to develop or are his reports generally inconsistent with medical knowledge or implausible. Provide a rationale to support all opinions. 2. After undertaking any additional development deemed appropriate, readjudicate the pending claims. KEITH ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.