Citation Nr: 21025375 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-39 456 DATE: April 28, 2021 ORDER New and material evidence has been received to reopen the previous final denial of service connection for a traumatic brain injury (TBI) for compensation purposes; the claim is granted to that extent only. New and material evidence has been received to reopen the previous final denial of service connection for a left shoulder disability for compensation purposes; the claim is granted to that extent only. Entitlement to service connection for a right shoulder disability is denied. REMANDED Entitlement to service connection for compensation purposes for an acquired psychiatric disorder, to include depressive disorder, is remanded. Entitlement to service connection for compensation purposes for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for compensation purposes for a left shoulder disability is remanded. Entitlement to service connection for a breathing disability (including respiratory and sinus conditions), to include as due to an undiagnosed multisymptom illness is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. Evidence received since the unappealed final August 2013 decision, denying service connection for a TBI and a left shoulder disability for compensation purposes, relates to unestablished facts necessary to substantiate the claim and is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claims. 2. The preponderance of the evidence is against finding that the Veteran has a current diagnosis for a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for a TBI for compensation purposes have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim for service connection for a left shoulder disability for compensation purposes have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to June 19, 2009 with a honorable discharge. The Veteran also served on active duty from June 20, 2009 to April 2011. A July 2013 Administrative decision concluded that the Veteran’s period of service that ended in April 2011 was under other than honorable conditions and a bar to VA benefits for that period of service. The Veteran testified before the undersigned Veterans Law Judge in March 2021. The Board of Veterans’ Appeals (Board) notes that the Veteran’s complete service treatment records are unavailable. See July 2013 Formal Finding of Unavailability of service treatment records. When service records are unavailable through no fault of the veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362 (2005), Cuevas v. Principi, 3 Vet. App. 542 (1992); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). September 2017 VA treatment records show the Veteran has been diagnosed with several psychiatric disorders under DSM-5, and therefore the service connection claim for depressive disorder has been recharacterized as a service connection claim for an acquired psychiatric disorder. The Veteran filed a claim for dyspnea. See Dorland’s Illustrated Medical Dictionary, 589 (31st ed. 2007) (defining dyspnea as “breathlessness or shortness of breath; difficult or labored respiration”). During the hearing before the Board, the Veteran clarified his claim to include his diagnosed chronic sinus disease and bronchitis. See March 2021 Transcript Hearing. Therefore, the service connection claim for dyspnea has been broadened to include respiratory and sinus disorders. Clemons, supra. The Board notes that in an August 2013 rating decision, the regional office (RO) denied service connection for a mental health condition for compensation purposes. The Veteran did not file a notice of disagreement (NOD) or submit new evidence within a year of the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(b); 20.1103. At the time of the final August 2013 RO rating decision, there were some service treatment records (STRs) associated with the claims file, which were from the Veteran’s second period of active service. In May 2017, additional STRs were added to the claims folder, which were not of record at the time of the August 2013 rating decision. Significantly, these STRs revealed additional in-service treatment for alcohol dependence and psychosocial evaluations. Governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official STRs that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156(c). As these additional STRs are relevant to the issue on appeal, the claim for service connection for an acquired psychiatric disorder must be reconsidered, on a de novo basis, without the need to address whether there is new and material evidence to reopen the claim. Id. As to the Veteran’s TBI and left shoulder claims, the Board recognizes that the RO also denied the claims in the final August 2013 rating decision. As an initial matter, the Board notes that the additional STRs added since that decision do not contain evidence relating to the TBI or left shoulders, and are not relevant to the claims. As such, the claims cannot be considered original claims for service connection pursuant to 38 C.F.R. § 3.156(c), as with the acquired psychiatric disorder claim above. Accordingly, the new and material evidence is still necessary to reopen the TBI and left shoulder claims. 1. New and material evidence has been received to reopen the previous final denials of service connection for a TBI and left shoulder disability for compensation purposes Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 C.F.R. § 3.156(a). Here, service connection for a TBI and left shoulder disability for compensation purposes were denied in August 2013 because the Veteran’s in-service injuries occurred during a period of service barred from VA benefits. The Veteran did not file a NOD or submit new evidence within a year of notification; therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The relevant evidence received since the final denial includes the March 2021 hearing before the Board. This newly received evidence relates to unestablished facts necessary to reopen the previously denied claims of service connection. Therefore, the Board concludes that the claims may be reopened due to new and material evidence. 38 C.F.R. § 3.156(a); see also Hickson v. Shinseki, 23 Vet. App. 394 (2010). For the reasons described below, the claims are being remanded for additional development. 2. Entitlement to service connection for a right shoulder disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends should be service connected for a bilateral shoulder disability and therefore a right shoulder disability. The question for the Board is whether the Veteran had a current right shoulder disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s available STRs, are silent for a diagnosis or symptoms of a right shoulder disability. Additionally, there are current medical records which provide a diagnosis for a right shoulder disability at any point during the period on appeal. The Veteran had the opportunity to appear before the Board in March 2021, and when asked to provide evidence of a bilateral shoulder disability, the Veteran only addressed his left shoulder. He did not provide the Board with any lay evidence of a current right shoulder disability or in-service right shoulder complaints. While the Veteran did not undergo a VA examination for the condition, and nexus opinions have not been sought, the Board finds that a VA opinion is not necessary. Under VA’s duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The requirements to secure a VA examination represent a low bar. Although McClendon sets a low bar, that bar has not been met here. Here, there are no post-service records showing a right shoulder disability. There is no evidence the Veteran has the training or credentials to provide a competent opinion as to a diagnosis for a right shoulder disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Even in the absence of no diagnosable right shoulder disability, the Board draws attention to Saunders, and notes that the Veteran’s right shoulder may still be service connected if his pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). The record is negative for medical or lay evidence of right shoulder complaints, and therefore, Saunders is not applicable for meeting the first requirement of service connection under Shedden, supra. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent a current diagnosis, the Board must find that the preponderance of the evidence is against the Veteran’s claim for service connection for a right shoulder disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND At the outset, the Board notes the record shows evidence the Veteran is attempting to upgrade the discharge of his second period of active service. See July 2018 NOD; August 2018 VA Form 9; March 2021 Hearing Transcript. October 2018 Correspondence shows the Naval Discharge Review Board (NDRB) was attempting to collect in-service treatment records, to include mental disorder evaluations. There have been no additional records added to the Veteran’s claims file to show there has been any determinations made as to the Veteran’s request for a discharge upgrade. Thus, remand is necessary to obtain any documentation pertaining to such an application because of relevant medial evidence during the Veteran’s second period of active duty service. No new medical treatment records have been associated with the Veteran’s claim file since August 2018. VA should undertake necessary development to associate any outstanding medical records with the claim file. 1. Entitlement to service connection for compensation purposes for an acquired psychiatric disorder is remanded. The Veteran is currently diagnosed for several psychiatric disorders, to include other specified personality disorder with antisocial traits and unspecified depressive disorder. See September 2017 VA treatment records. The Veteran’s STRs show evidence of continued alcohol dependence treatment and a June 2007 mental status examination during his first period of honorable active duty service. The Veteran also reported that depressive symptoms began in 2007 or 2008 during his hearing before the Board. The Veteran was provided a VA examination in August 2013. The examiner diagnosed the Veteran with opioid dependence, cannabis dependence, and anti-social personality disorder. The Board notes the Veteran has also been diagnosed with depressive disorder. An addendum opinion is necessary which addresses all the mental disorders diagnosed during the period on appeal. Additionally, the Veteran was diagnosed with depression in September 2010 STRs, during his second period of active duty. The Veteran’s claim is inextricably intertwined with the Veteran’s reported application for a discharge upgrade for his second period of active duty. Accordingly, the Veteran’s claim is remanded for further development. 2. Entitlement to service connection for compensation purposes for a TBI and left shoulder are remanded. The Veteran’s STRs show a December 2009 left shoulder injury playing football. The Veteran reported his TBI occurred in September 2009 during the Board hearing, and the STRs show a TBI occurred during deployment in 2009. The claims are inextricably intertwined with the Veteran’s reported application for a discharge upgrade for his second period of active duty. Accordingly, the Veteran’s claims are remanded for further development. 3. Entitlement to service connection for a breathing disability, to include respiratory and sinus conditions, is remanded. May 2018 VA treatment notes show that the Veteran has current diagnoses for sinusitis, mild reactive airway disease, and bronchitis. During the period of honorable active service, the Veteran was diagnosed with upper respiratory infections and bronchitis. See January 2006 STR; June 2006 STR; November 2006 STR. The record contains sufficient evidence to trigger the VA’s duty to assist by providing a VA examination. However, a VA examination to discuss the nature and etiology of the Veteran’s breathing disorder has not been provided. Therefore, a VA examination for to determine the nature and etiology of any breathing disorder is warranted. See McLendon, supra. The Board also notes the Veteran reported breathing problems after he left Iraq because of exposure to burn pits during the Board hearing. The Veteran served in Iraq from February 2009 to September 2009. See December 2009 Post-Deployment Health Re-Assessment. Part of the Veteran’s deployment in Iraq occurred during his period of honorable service, and therefore a nexus opinion related to his service in Southwest Asia is also required. Accordingly, the Veteran’s claim is remanded for further development. 4. Entitlement to service connection for tinnitus is remanded. The Veteran is currently diagnosed for tinnitus. See July 2017 VA examination. The examiner determined the Veteran’s tinnitus was caused by or a result of the Veterans second period of active service. The Veteran’s claim is inextricably intertwined with the Veteran’s reported application for a discharge upgrade for his second period of active duty. The Board also notes the Veteran reported his tinnitus began in 2008 during his Board hearing. Due to the lay evidence of in-service causation during the honorable period of active service, an addendum opinion is necessary to determine if the Veteran’s tinnitus incurred during or was caused by the first period of active service. Accordingly, the Veteran’s claim is remanded for further development. 5. Entitlement to service connection for hepatitis C is remanded. The Veteran was provided with a VA examination in June 2017. The examiner diagnosed the Veteran with hepatitis C. The examiner provided a negative nexus opinion, finding the hepatitis C may have been related to the Veteran’s activities prior to enlistment into active service. The Board notes the Veteran’s entrance examination is negative for any evidence of Hepatitis C. The Board finds this examination inadequate because the examiner needs to provide an opinion to determine if the hepatitis C clearly and unmistakably pre-existed active duty service due to the presumption of soundness, and therefore an addendum opinion is necessary. Accordingly, the Veteran’s claim is remanded for further development. The matters are REMANDED for the following action: 1. Undertake all necessary development to determine whether the Veteran applied for a character of discharge upgrade. Any documentation pertaining to any such application should be obtained and associated with the claims file. If no documentation is found, attempts to obtain said documentation must be added to the Veteran’s claims file. 2. Make efforts to obtain all outstanding medical records, to include private treatment records relevant to the Veteran’s appeals in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 3. Forward the claims file to a qualified VA medical professional to provide an addendum opinion to determine the current nature and etiology of the Veteran’s mental disorders. A new examination may be provided if deemed necessary. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: Provide a current diagnosis for any mental condition which may have manifested at any time during the period on appeal (since March 2017 to the present); If the Veteran does not now have, but previously had, any diagnosed mental condition, when did that condition resolve; and Provide an opinion as to whether any diagnosed mental condition at least as likely as not (a 50 percent or greater probability) is etiologically related to the Veteran’s first period of active service, from June 2005 to June 19, 2009; A complete rationale for all opinions expressed should be provided, which includes a discussion of lay evidence provided by the Veteran. 4. Forward the claims file to a qualified VA medical professional to provide examinations to determine the current nature and etiology of the Veteran’s breathing disorders. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: Provide a current diagnosis for any respiratory or sinus disorder which may have manifested in a breathing disorder at any time during the period on appeal (since March 2017 to the present); If the Veteran does not now have, but previously had, any such disorder, when did that condition resolve; Provide an opinion as to whether any diagnosed disorder at least as likely as not (a 50 percent or greater probability) is etiologically related to the Veteran’s first period of active service, June 2005 to June 19, 2009; Provide an opinion as to whether any diagnosed disorder at least as likely as not is etiologically related to the Veteran’s second period of active service; If a nexus to service cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis; and If, after reviewing the claims file, it is determined that the Veteran’s disability pattern is consistent with either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during active duty to include his service in Southwest Asia. A complete rationale for all opinions expressed should be provided, which includes a discussion of lay evidence provided by the Veteran. 5. Forward the claims file to a qualified VA medical professional to provide an addendum opinion to determine the current nature and etiology of the Veteran’s tinnitus. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to provide an opinion as to whether tinnitus at least as likely as not (a 50 percent or greater probability) is etiologically related to the Veteran’s first period of active service, from June 2005 to June 19, 2009. A complete rationale for all opinions expressed should be provided, which includes a discussion of lay evidence provided by the Veteran. 6. Forward the claims file to a qualified VA medical professional to provide an addendum opinion to determine the current nature and etiology of the Veteran’s hepatitis C. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to address the following: Provide an opinion as to whether hepatitis C clearly and unmistakably pre-existed the Veteran’s first period of active duty, from June 2005 to June 19, 2009; If hepatitis C clearly and unmistakably preexisted before the first period of active service, is it clear and unmistakable that the diagnosed psychiatric disorder was NOT aggravated beyond its natural progression during the Veteran’s service; If the above inquiry is answered in the negative, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that that hepatitis C is etiologically related to the first period of active service. A complete rationale for all opinions expressed should be provided, which includes a discussion of lay evidence provided by the Veteran. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, 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.