Citation Nr: 21008898 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-55 502 DATE: February 18, 2021 ORDER New and material evidence having been received, reopening of the claim for entitlement to service connection for a back disorder is granted. New and material evidence not having been received, reopening of the claim for entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for vertigo is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for an acquired psychiatric disability, including anxiety and depression, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. In March 2002, December 2009, and July 2012, the Regional Office (RO) denied service connection for a back disability based upon a lack of evidence of a causal connection between the Veteran’s back disability and his active service. 2. The evidence received since July 2012 includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the back disorder claim. 3. In December 2009, the RO denied service connection for diabetes mellitus based upon a lack of evidence of a causal connection between the Veteran’s diabetes mellitus and his active service. 4. The evidence received since December 2009 shows the presence of diabetes mellitus, but does not include any evidence suggesting an in-service onset, an incident in service that caused the later diagnosed diabetes mellitus, or that the Veteran’s service-connected tinnitus, or any other claimed disability, has caused or aggravated the Veteran’s diabetes; thus, the new evidence received since December 2009 does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. 5. The Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that vertigo began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence was not received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for vertigo are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1976 to August 1978. The matters on appeal come before the Board of Veterans’ Appeals (Board) from February 2017 and February 2018 rating decisions. New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision 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 that 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 decisionmakers. 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). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). Back Disorder The Veteran was initially denied service connection for a low back condition by way of a March 2002 rating decision. The RO recognized the presence of a back disability and also recognized the treatment for back pain in service, but found the back pain had resolved by separation. The RO determined that the current back disorder was not causally connected to the symptoms shown in service, but, rather, due to intercurrent injury caused in a post-service motor vehicle accident. Service connection for a back condition was again denied in December 2009 and in July 2012 on the same basis. The Veteran did not file a notice of disagreement with either the March 2002 or the December 2009 rating decisions. The Veteran did file a notice of disagreement with the July 2012 rating decision in September 2012. The RO then issued a statement of the case in December 2015; however, the Veteran’s VA Form 9 was not filed until March 2016. The RO notified the Veteran in April 2016 that the form could not be accepted as a substantive appeal because it was untimely. The July 2012 decision, therefore, became final. The Veteran then filed this claim to reopen in January 2017. The records available and reviewed by the RO at the time of the July 2012 rating decision included the Veteran’s service treatment records, VA outpatient treatment records dated through July 2012, a June 2012 VA examination report, the Veteran’s lay statements and claims, and Social Security Administration records. Since July 2012, ongoing treatment records, a VA examination report, a private opinion and the Veteran’s, as well as other, lay statements have been added to the claims file. In pertinent part, a family friend submitted a statement, which was received by VA in July 2019. This friend indicated she has known the Veteran and his wife since the mid-1980s. She reported that he has complained of back pain from his time in service ever since she has known him. Also, in July 2019, the Veteran sent in a statement indicating that he initially developed back pain in service, and it has continued since. He emphasized the back pain had been present and ongoing since service, prior to his 2009 motor vehicle accident. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The records added to the claims file since July 2012 are not cumulative or redundant of the evidence previously of record. Rather, they suggest a potential relationship between the Veteran’s current back disorder and his active service, at least enough to warrant a VA examination and opinion. Moreover, these records are material in that it was the lack of evidence of such a causal connection that was the basis of the prior denial. Accordingly, reopening of the claim for service connection for a back disorder is warranted. Diabetes Mellitus The Veteran is also seeking to reopen the claim for service connection for diabetes mellitus. The Veteran originally sought service connection for diabetes mellitus in October 2009. This claim was denied by the RO in December 2009. The Veteran did not file a notice of disagreement with this decision and it, therefore, became final. He filed the current claim for service connection for diabetes mellitus in January 2018. The evidence of record at the time of the December 2009 decision included the Veteran’s service treatment records, post-service VA records, and the Veteran’s claim. The Veteran’s October 2009 claim statement included an indication that he was told he had diabetes while in training for the Marines. The RO denied the claim on the basis that there was no evidence of diabetes having been diagnosed in service or within one year of the Veteran’s separation from service. The RO noted the Veteran was diagnosed with diabetes in approximately 2004. The Board has reviewed the evidence received since December 2009. VA and private records show the Veteran has diabetes, but there is no evidence suggesting an in-service incurrence of diabetes or suggesting the diabetes resulted from any in-service event or injury. Further, the new evidence does not establish a diagnosis of diabetes within one year of the Veteran’s August 1978 separation from service. A March 2011 private record suggests the Veteran reported to his physician that his diabetes was diagnosed in 2003, many years after his separation from service. The Board also notes that the Veteran’s representative has not provided any argument in relation to the diabetes claim. The Veteran has provided no statements in support of the claim other than filing the claim, notice of disagreement and VA Form 9, which merely restate the claim. Thus, the evidence received since December 2009, although new, is not material because its factual showing is duplicative of the facts present at the time of the prior denial. The evidence is cumulative of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the diabetes claim is not in order. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Hypertension The Veteran contends service connection is warranted for hypertension. The basis for his claim is unclear. The Board has reviewed the Veteran’s statements, as well as the arguments provided by his representatives. These do not provide any information related to the hypertension claim. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Further, hypertension is a recognized chronic disease, which will be awarded presumptive service connection if it manifested to a compensable degree within one year of the Veteran’s August 1978 separation from active service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In this case, the Board recognizes the Veteran is diagnosed with hypertension and takes medication for it, which is shown in his clinical treatment records throughout the claim period. Thus, the first element of establishing service connection, a current diagnosis of the disability claimed, is met. The question for the Board is whether the Veteran’s hypertension was incurred during his active service, manifested within one year of his discharge, or is in any other way causally connected to his active service. The Veteran’s service treatment records do not include any indication of hypertension or treatment related to elevated blood pressure. There are no records in the file within one year of the Veteran’s August 1978 separation from service showing hypertension. Further, the Veteran has not provided any statements suggesting hypertension was first diagnosed in service or within one year of separation. The first record within the claims file showing hypertension is dated in June 1998. The handwritten notes show the Veteran was found on an employment physical to have elevated blood pressure such that the Veteran sought evaluation. Hypertension was diagnosed at that time. There is no suggestion in this record that it was in any way related to the Veteran’s active service. Ongoing records since that time show treatment and medication for hypertension, but no indication of a relationship with active service. The Board concludes that although the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, began within one year of separation, or is otherwise related to an in-service injury, event, or disease. The Board has considered whether a VA examination is required with regard to the claim on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to this claim. Because there is no evidence of an in-service incurrence of hypertension, there is no basis for an award of service connection under 38 C.F.R. § 3.303. Further, because the hypertension did not manifest to a compensable degree within one year of the Veteran’s August 1978 separation from service, there is also no basis for an award of service connection presumptively under 38 C.F.R. § 3.309. Accordingly, this claim for service connection for hypertension must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Vertigo The Veteran claims service connection is warranted for vertigo. Neither he, nor his representative have provided any statements to suggest a basis for this claim. The Board has nonetheless reviewed the claims file for evidence of a diagnosis of vertigo and evidence showing its relationship to service. VA clinical records do show the Veteran being treated for vertigo in May 2015 and several times in 2016. Although this is more than one year prior to the Veteran’s January 2018 claim, the Board has reviewed the file for any evidence suggesting the Veteran’s history of vertigo is related to his active service. A March 2016 record shows a clinician’s opinion that the Veteran’s vertigo sounds consistent with orthostatic hypotension, which is due to mediation side effects. Reference was made to the Veteran’s hypertension medication. April 2016 records include the mention of dizziness, orthostatic hypotension, and vertigo within a discussion of a change in the Veteran’s hypertension medication. A May 2016 treatment note shows the Veteran reported his vertigo starting about five years prior. A physical therapist at that time suggested the Veteran’s vertigo is likely due to multifactorial causes, including visual defects, coronary artery disease, orthostasis, uncontrolled diabetes, and other medical co-morbidities. Although the Veteran has claimed service connection for hypertension, it is being denied herein, such that service connection for vertigo under 38 C.F.R. § 3.310 on a secondary basis is not warranted. Further, there is no evidence in the record of vertigo in service or for many years following his August 1978 separation from service. The records treating vertigo make no suggestion that it is causally connected in any way to his active service. The Board concludes that the Veteran has been treated for vertigo, but the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board has considered whether a VA examination is required with regard to the claim on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to this claim. Because there is no evidence of an in-service incurrence of vertigo, and no evidence suggesting the vertigo is causally connected to any injury or event in service, there is no basis for an award of service connection under 38 C.F.R. § 3.303. Accordingly, this claim for service connection for vertigo must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND Back Disorder The Veteran contends his current back disorder initially onset in service. As noted above, VA has recognized the various reports of back pain in service. The claim was denied previously based upon a finding that the current disability was related to post-service accidents rather than the in-service back pain. However, additional evidence received gives rise to the need for additional evidentiary development. Although VA found the in-service indications of back pain to be mild in nature and resolved by separation, in July 2019, the Veteran reported being put on light duty in service due to his back symptoms and undergoing physical therapy. This potentially suggests a more severe level of symptoms during the Veteran’s active service. The limited duty would likely be shown in the Veteran’s service personnel records. These records are not a part of the record before the Board. Remand is required in order to have the RO obtain the Veteran’s service personnel records and associate them with the claims file. Further, the Veteran’s July 2019 statement suggests the post-service motor vehicle accident in 2009 was not serious. He also reported having back pain in service and ever since; thus, prior to the post-service accident. Also, in July 2019, the Veteran submitted a statement of a family friend who indicated she was friends with the Veteran and his wife since the mid-1980s. She recalled the Veteran consistently reporting back pain at that time and remarking that it was from his years in the service. Then, in October 2019, a private physician suggested the Veteran’s back problems more likely than not began in service and continued uninterrupted since that time and were exacerbated by injuries in a post-service motor vehicle accident. The Board finds a remand is necessary to afford the Veteran an updated VA examination and to obtain an opinion addressing the evidence finding a back disability as present since service with exacerbation by a post-service accident. The examiner should, to the extent possible, determine the symptoms present since service and assess what post-service disability is at least as likely as not causally connected to the back symptoms noted in service and the reports of back pain existing since. To the extent possible, the examiner should also distinguish those symptoms from those attributable to the post-service accident. If no such distinction is possible, this should be stated. Acquired Psychiatric Disability, including Anxiety and Depression The Veteran has claimed he has a current psychiatric disability that is causally connected to his active service, or, in the alternative, proximately due to or being aggravated by service-connected disabilities. Initially, the Board notes the Veteran is presently service-connected for tinnitus. In October 2019, the Veteran reported to a physician that he first started experiencing a feeling of depression in service at the time he began to be pushed out. He reported that he was planning on a career in the military and felt the onset of depression when he was being discharged from the service. The Veteran also reported that his symptoms of tinnitus easily aggravate him and contribute to his isolative behaviors because he cannot hear people and is always asking them to repeat themselves. The physician indicated that the Veteran’s service-connected tinnitus contributes to his overall irritability, poor relationships, and increased isolation. The same physician indicated the Veteran’s chronic back pain has a severe impact on his symptoms of depression. The physician went on to indicate the Veteran’s major depressive disorder and anxiety disorder are at least as likely as not aggravated by his tinnitus (a service-connected condition) and his diabetes mellitus (a non-service-connected condition), as well as his physical limitations. The physician; however, also went on to indicate the Veteran’s mood disorders began while the Veteran was in service and have continued uninterrupted since that time. This opinion restated various facts from the claims file, but provided varied opinions without a fully explained rationale for any of them. The Board finds remand is necessary in order to afford the Veteran a VA examination to determine the nature of his psychiatric disability and to assess its causal connection to his service, or its relationship to his service-connected tinnitus. This should occur after an assessment of the etiology of the back disability takes place. If the back disability is deemed related to the Veteran’s service, then the psychiatric disorder opinion should include an opinion as to whether the psychiatric disorder is caused or aggravated by the chronic back pain. Obstructive Sleep Apnea The Veteran has claimed service connection is warranted for his obstructive sleep apnea. He has not claimed an in-service onset of sleep apnea; rather, he claims this as secondary to the psychiatric disability claimed to be service connected. In October 2019, a physician opined that the Veteran’s depressive disorder, antidepressants, obesity, and pain medication more likely than not have caused his obstructive sleep apnea. The physician also noted that the psychiatric disorder contributes to his inability to use a CPAP to treat his sleep apnea. The physician found this to aggravate the sleep apnea. This opinion suggests a potential relationship between the claimed sleep apnea and the claimed psychiatric and back disabilities, both being remanded here. Because a decision on the back and psychiatric disorder issues could significantly impact a decision on the issue of entitlement to service conneciton for obstructive sleep apnea, the issues are inextricably intertwined. A remand of the sleep apnea claim is also required. Headaches The Veteran has claimed service connection is warranted for headaches. A review of the record reveals a physician in October 2019 opined that the Veteran’s headaches are caused by his depressive disorder and his tinnitus. The tinnitus is service-connected, but the depressive disorder has not yet been deemed service connected. To the extent a combination of these disorders is causing the Veteran to have headaches, the Board find the matter must be remanded since a decision on the psychiatric disorder issue could significantly impact a decision on the issue of entitlement to service connection for headaches, such that the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records and associate them with his claims file. 2. Schedule the Veteran for a VA examination for his claimed back disability. The examiner should examine the Veteran, conduct any necessary testing, and obtain his medical history, as well as review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s back disability at least as likely as not related to service, including the various reports of back pain noted within his service treatment records? The examiner is requested to review and discuss the Veteran’s report that he experienced back pain continuously after service, even before his post-service motor vehicle accident; the Veteran’s report that the post-service motor vehicle accident was minor; the lay statement from someone who knew the Veteran in the 1980s and remarked on his reports of back pain then; and the October 2019 medical opinion. If arthritis is diagnosed, the examiner is asked to answer whether it is at least as likely as not that the arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? If the back disability is confirmed as initially manifesting in service, the examiner is asked to comment on the October 2019 physician’s indication that the post-service accident exacerbated the back condition. In this situation, the examiner is asked, to the extent possible, to distinguish the severity of the condition before and after the post-service accident. If no such distinction of symptoms is possible, this should be stated in the report. 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 is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support any opinion expressed. 3. Schedule the Veteran for an appropriate VA examination for his claimed psychiatric disability. The examiner must review the claims file, interview the Veteran and conduct any testing necessary. The examiner should note the psychiatric diagnoses present during the pendency of this claim, which was filed in November 2016. The examiner is asked to discuss whether any psychiatric disorder diagnosed is at least as likely as not related to his service, including a discussion of the Veteran’s October 2019 statement suggesting he first felt depression within his last year of active service. The examiner is also asked to discuss whether any psychiatric disorder diagnosed is at least as likely as not proximately due to, or at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran’s service-connected tinnitus. The examiner should reference and discuss the October 2019 medical opinion suggesting such as relationship exists. If the Veteran’s back disability is deemed causally connected to his active service, the examiner is also asked to discuss whether any psychiatric disorder diagnosed is at least as likely as not proximately due to, or at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran’s back disability. The examiner should reference and discuss the October 2019 medical opinion suggesting such as relationship exists between the psychiatric disorder and the Veteran’s chronic pain. Provide a rationale to support any opinion expressed. 4. If the back disability and/or psychiatric disability are determined to warrant service connection, the RO should consider whether examinations are warranted for either the sleep apnea or the headache claim. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.