Citation Nr: 21013067 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-00 213A DATE: March 8, 2021 ORDER The application to reopen the claim for service connection for post-traumatic stress disorder (PTSD), is granted. The application to reopen the claim for service connection for a respiratory condition, including dyspnea due to asbestos exposure and asthma, is granted. The application to reopen the claim for service connection for sleep apnea is granted. The application to reopen the claim for service connection for a back condition, including lumbosacral strain and lumbar spinal stenosis, is granted. Entitlement to service connection for a dental condition is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a respiratory condition, including dyspnea due to asbestos exposure and asthma, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a back condition, including lumbar strain and lumbar spinal stenosis, is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. A December 2012 rating decision denied service connection for PTSD and asthma. The evidence received since the December 2012 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims. 2. A November 2014 rating decision denied service connection for sleep apnea and a back condition. The evidence received since the November 2014 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims. 3. The Veteran does not have a dental condition that is a compensable disability for VA purposes. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. New and material evidence having been submitted, the claim for service connection for a respiratory condition, including asthma, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. New and material evidence having been submitted, the claim for service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. New and material evidence having been submitted, the claim for service connection for a back condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 5. The criteria for entitlement to service connection for a dental condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 1712 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.381, 4.150 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to July 1973, and he received the National Defense Service Medal. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for a dental condition for treatment purposes only has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. Specifically, the AOJ should refer the claim for dental treatment to the appropriate VA Medical Center. Application to Reopen the Claims for Service Connection for PTSD, a Respiratory Condition, Sleep Apnea, and a Back Condition The claims for service connection for PTSD and asthma were previously denied in an unappealed rating decision in December 2012. The AOJ determined that the evidence failed to show a current diagnosis of PTSD or a nexus between the Veteran’s asthma and his service. The Veteran did not appeal this decision or submit new evidence within one year of the denial. The December 2012 decision thereby became final. Since that final decision, the Board finds that new and material evidence has been submitted. The Veteran has presented evidence of various psychiatric diagnoses and treatment notes showing complaints consistent with PTSD. See December 2019 CAPRI, p. 72. At the March 2020 hearing, the Veteran testified that he experienced shortness of breath and difficulty breathing in service and that he was told his breathing difficulties could be related to asbestos exposure. See March 2020 Hearing Transcript, pp. 18-20. The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran’s acquired psychiatric disability and respiratory condition are related to his service, and the Board will reopen the claims. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). Similarly, the Veteran’s claims for service connection for sleep apnea and a back condition were previously denied in an unappealed rating decision in November 2014. The Veteran did not appeal this decision or submit new evidence within one year of the denial. The November 2014 decision thereby became final. Since that final decision, the Veteran has submitted new and material evidence. At the March 2020 hearing, the Veteran testified that he experienced excessive tiredness and back pain during service. See March 2020 Hearing Transcript, pp. 13-14, 21. The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran’s sleep apnea and back condition are related to his service, and the Board will reopen the claims. See Shade, 24 Vet. App. at 118; see also Hodge, 155 F.3d at 1363. Service Connection for a Dental Condition Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible; loss of the mandible or maxilla; nonunion or malunion of the mandible or maxilla; limited temporomandibular motion; loss of the ramus; loss of the condyloid or coronoid processes; loss of the hard palate; and, loss of teeth due to the loss of substance of the body of the maxilla or mandible where the lost masticatory surface cannot be restored by suitable prosthesis and when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150. For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. The Veteran has not submitted any evidence of a current dental disability that is eligible for service connection. The Veteran contends that he had teeth pulled in bootcamp, he was not given dentures or a bridge, and he has experienced additional tooth loss as a result. See March 2020 Hearing Transcript, pp. 26-27. However, the evidence does not show, and the Veteran does not contend, that he has experienced any bone loss from trauma or disease as a result of his extractions. Treatment records show advanced dental caries and tooth pain. See October 2016 CAPRI, pp. 182-183. In light of the evidence, the Board finds that the Veteran does not have a current disability for VA purposes and the first element of service connection has not been established. See Holton, 557 F.3d at 1366. In the absence of a current disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. Accordingly, service connection for a dental condition must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Service Connection for an Acquired Psychiatric Disability Preliminarily, the Board notes that the Veteran has claims for – and the record references – multiple mental health conditions. Recognizing that the Veteran is seeking service connection for mental health symptoms, regardless of how those symptoms are diagnosed or labeled, and thus, the Board has combined and recharacterized the Veteran’s claim to include any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s treatment records contain diagnoses of unspecified psychotic disorder, polysubstance dependence, and unspecified schizophrenia and other psychotic disorder. See December 2019 CAPRI, p. 72; October 2016 CAPRI, p. 135; September 2015 VA Examination, pp. 1, 25. There is only one nexus opinion of record that addresses the unspecified schizophrenia and other psychotic disorder and polysubstance dependence. See September 2015 VA Examination, pp. 1, 25. However, the opinion does not include a rationale and therefore is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, although the Veteran submitted a psychiatrist’s opinion on his behalf, that opinion did not address whether the Veteran’s conditions were at least as likely as not related to service. See November 2020 Medical Treatment Record. On remand, the AOJ should obtain a nexus opinion that addresses whether any of the Veteran’s diagnoses are related to the in-service incident in which he witnessed the death of a colleague. Service Connection for a Respiratory Condition Although the Veteran’s claim was initially limited to the question of entitlement to service connection for dyspnea due to asbestos exposure, the Veteran also reports that he has been diagnosed with asthma. See March 2020 Hearing Transcript, p. 19. The Board has broadened the claim to include service connection for a respiratory condition, including dyspnea and asthma. See Brokowski v. Shinseki, 23 Vet. App. 70, 87 (2009). The Veteran claims that his respiratory condition onset during service and that it may be etiologically related to asbestos exposure. See March 2020 Hearing Transcript, pp. 16, 20. There is currently no nexus opinion of record and the claim is remanded accordingly. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Moreover, on remand, the AOJ should conduct additional development to determine whether the Veteran was exposed to asbestos during his active duty service. Service Connection for Sleep Apnea The Veteran has a current diagnosis of sleep apnea, see December 2019 CAPRI, p. 59, and reports that he experienced symptoms of sleep apnea during his active duty service. See March 2020 Hearing Transcript, pp. 20-21. As there is no nexus opinion of record, the claim is remanded for a VA examination and nexus opinion. See McLendon, 20 Vet. App. at 81. Service Connection for a Back Condition and Bilateral Lower Extremity Radiculopathy In October 2016, a VA clinician opined that the Veteran’s pre-existing back condition was not aggravated by his active duty service. See October 2016 VA Examination, pp. 1-4. The Veteran did not have any back issues noted in his enlistment examination and testified at the March 2020 hearing that he did not have any back issues prior to service. See December 2014 STR, pp. 15, 28; March 2020 Hearing Transcript, p. 13. Thus, the basis for the determination that the Veteran had a back injury prior to service is unclear to the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the opinion rests on an absence of complaint of back pain in the service records, but the Veteran competently and credibly testified that he experienced back pain during service. Accordingly, the claim is remanded for a new opinion that fully sets forth its rationale and that considers the Veteran’s reports. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination that addresses the nature and etiology of his acquired psychiatric disability. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address the following: (a) Identify all diagnoses that pertain to the Veteran’s psychiatric complaints. (b) For any diagnosis identified, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing this opinion, the examiner must consider the Veteran’s in-service complaints of hallucinations, lack of appetite, difficulty sleeping, anger and anxiety, and his reports that his symptoms continued after service. See December 2014 STR, pp. 1-2; March 2020 Hearing Transcript, pp. 3-11. (c) For any diagnoses identified that qualifies as a “psychosis” as defined under 38 C.F.R. § 3.384, including, but not limited to psychotic disorder, delusional disorder, and schizoaffective disorder, explain whether the condition manifest to a degree of 10 percent or more within one year from the date of separation from service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Take all appropriate steps to confirm whether the Veteran was exposed to asbestos during his active duty service. All efforts to confirm asbestos exposure should be documented. 3. Schedule the Veteran for an examination that addresses the nature and etiology of his respiratory complaints. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address the following: (a) Identify all diagnoses that pertain to the Veteran’s respiratory complaints. (b) For any diagnosis identified, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing this opinion, the examiner must consider the Veteran’s reports of asbestos exposure and the Veteran’s reports of experiencing shortness of breath in service. See March 2020 Hearing Transcript, p. 20. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 4. Schedule the Veteran for an examination that addresses the etiology of his sleep apnea. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner must consider the Veteran’s reports of having difficulty sleeping and experiencing excessive tiredness during service. See March 2020 Hearing Transcript, pp. 20-21. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 5. Schedule the Veteran for an examination that addresses the etiology of his back condition and bilateral lower extremity radiculopathy. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner must consider the Veteran’s reports of having back pain from picking up things and going up and down hatches during his active duty service as well as his reports that he did not experience back pain prior to service. See March 2020 Hearing Transcript, pp. 13-14. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, Associate 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.