Citation Nr: 21032565 Decision Date: 05/25/21 Archive Date: 05/27/21 DOCKET NO. 20-04 705 DATE: May 25, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability, is reopened. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, is reopened. New and material evidence having been received, the claim of entitlement to service connection for hepatitis C is reopened. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, is granted. Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability, is remanded. Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. In a May 1985 rating decision, the regional office (RO) denied service connection for migraines, to include as secondary to an acquired psychiatric disability, and while an appeal was initiated, the Veteran did not perfect it. 2. Additional evidence received since the May 1985 rating decision denying service connection for migraines is new, relates to unestablished facts necessary to support the claim, and raises a reasonable possibility of substantiating the claim. 3. In a May 2014 rating decision, the RO declined to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, and for hepatitis C; no appeal of this decision was initiated. 4. Additional evidence received since the May 2014 rating decision which declined to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, and for hepatitis C is new, relates to unestablished facts necessary to support the claims, and raises a reasonable possibility of substantiating the claims. 5. Resolving all reasonable doubt in his favor, the Veteran's acquired psychiatric disability is proximately due to his service-connected lumbar spine disability. 6. The preponderance of the evidence of record is against finding that the Veteran has had a respiratory disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The May 1985 rating decision denying entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The May 2014 rating decision which declined to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, and for hepatitis C became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received to reopen the claims of entitlement to service connection an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, and for hepatitis C. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 5. The criteria for entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 6. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1977 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) RO in Phoenix, Arizona, which denied entitlement to service connection for a respiratory disability, confirmed and continued denials of entitlement to service connection for schizophrenia, migraines, and hepatitis C, and declined to reopen the Veteran's claim of entitlement to service connection for PTSD. The Veteran timely appealed. Although the Veteran specifically claimed entitlement to service connection for schizophrenia and PTSD, the appeal has been expanded to include all acquired psychiatric disabilities. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). During the course of the appeal, entitlement to service connection for a lumbar spine disability was granted. As this represents a full grant of the benefits sought, this issue is no longer on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran testified concerning the remaining issues before the undersigned Veterans Law Judge in a videoconference hearing in December 2020. A copy of the hearing transcript is of record. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 5108. The Board must determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "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). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold, to be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In adjudicating a claim for benefits, VA must consider all pertinent lay and medical evidence of record. 38 U.S.C. §§ 1154 (a), § 5107; 38 C.F.R. § 3.303. 1. New and material evidence having been received, the claim of entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability, is reopened. 2. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, is reopened. 3. New and material evidence having been received, the claim of entitlement to service connection for hepatitis C is reopened. The Veteran's claim of entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability, was denied on the merits in a May 1985 rating decision. The Veteran timely appealed and was issued a statement of the case (SOC) in September 1985. However, the Veteran did not timely perfect the appeal following the issuance of the SOC. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (setting forth requirements and time limits for initiating and perfecting an appeal). Moreover, new and material evidence was not received within one year of the May 1985 rating decision; the evidence on which the reopening of these claims is based is not dated until several years later, as shown below. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a); 20.1103. The RO declined to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, and for hepatitis C in a May 2014 rating decision. The Veteran did not appeal the decision and new and material evidence was not received within one year of that decision. Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a); 20.1103. New and material evidence has been received concerning all three of these issues in the form of new VA and private treatment records, examination reports, and etiological opinions, and the Veteran's sworn testimony at the December 2020 hearing. At the time the May 1985 and May 2014 rating decisions were issued, such evidence was not of record. Accordingly, this evidence relates to unestablished facts necessary to reopen the claims and raises a reasonable possibility of establishing service connection. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a "low threshold"). Therefore, reopening the claims is warranted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected lumbar spine disability, is granted. The Veteran maintains entitlement to service connection for an acquired psychiatric disability. He avers that the disability is either due to traumatic experiences during his active duty naval service or is secondary to his service-connected lumbar spine disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence weighs in favor of a grant of service connection for an acquired psychiatric disability as secondary to his service-connected lumbar spine disability. The Veteran has been variously diagnosed with several acquired psychiatric disabilities, including PTSD, psychosis, not otherwise specified (NOS), unspecified depressive disorder, unspecified bipolar disorder, unspecified schizophrenia spectrum and other psychotic disorder, and unspecified or unknown substance related disorder. Thus, the first element of service connection has been met. Further, the record reflects that the Veteran has been service-connected for a lumbar spine disability as related to a fall from scaffolding during service. Thus, the second element of service connection on a secondary basis has also been met. At issue is whether the Veteran's acquired psychiatric disability is related to his service-connected lumbar spine disability. In April 2021, the Veteran submitted a private psychological evaluation and medical opinion concerning the possible etiological relationship between his acquired psychiatric disability and his service-connected lumbar spine. The private examiner endorsed a review of the Veteran's VA medical records, as well as the provision of an interview and clinical evaluation of the Veteran. He concluded that the Veteran's acquired psychiatric disability, specifically his unspecified depressive disorder, was related to his lumbar spine disability and related issues, including chronic pain and discomfort, difficulty with employment, sleep disturbance, irritability, and difficulty with activities of daily living. The Board finds this this opinion highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided a clinical evaluation of him prior to proffering an opinion that is well reasoned and aligns with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contradictory medical opinion of record specifically regarding the relationship between the Veteran's acquired psychiatric disability and his service-connected lumbar spine disability. Resolving all reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disability, to include as secondary to his service-connected lumbar spine disability, is warranted. The Board need not discuss the other theories of entitlement advanced by the Veteran, as this award is a full grant of the benefit sought on appeal concerning this issue. 5. Entitlement to service connection for a respiratory disability is denied. The Veteran maintains entitlement to service connection for a respiratory disability. He avers that he developed a respiratory disability due to asbestos exposure during his active duty naval service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has had a current respiratory disability during the appeal period. Therefore, service connection is not warranted. The Veteran's VA and private medical treatment records are silent for complaint, treatment, or diagnosis of a respiratory disability, and in February 2018, the Veteran was afforded a VA examination in conjunction with his claim. He was given a full clinical evaluation, including pulmonary function testing, the results of which were normal. The VA examiner concluded that he did not have a current respiratory condition. The Board finds the February 2018 VA examination report highly probative, as the VA examiner physically examined the Veteran and documented the clinical findings, which included the fact that he had no discernible respiratory disability at that time. In the absence of a currently diagnosed respiratory disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim for service connection for a respiratory disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for migraines, to include as secondary to an acquired psychiatric disability, is remanded. The Veteran maintains entitlement to service connection for migraines. He avers that his migraines are secondary to an acquired psychiatric disability. The Board notes that the Veteran has been service-connected for an acquired psychiatric disability herein. While a VA examiner provided a negative opinion regarding an etiological relationship between the Veteran's diagnosed migraines and acquired psychiatric disabilities in February 2018, the Board notes that the examiner did not address the possibility of aggravation. On remand, an addendum opinion must be obtained that discusses whether the Veteran's migraines are aggravated (beyond natural progression) by his service-connected acquired psychiatric disability. 2. Entitlement to service connection for hepatitis C is remanded. The Veteran maintains entitlement to service connection for hepatitis C. He avers that he contracted the disability due to mandatory air gun inoculations in service. While a VA examiner provided a negative opinion regarding an etiological relationship between the Veteran's diagnosed hepatitis C and his active duty service in February 2018, the Board notes that the VA examiner did not specifically address the Veteran's claims that he developed the disability due to the use of air guns. On remand, an addendum opinion must be obtained that discusses this more fully. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from a qualified medical professional concerning whether the Veteran's migraines are at least as likely as not (50 percent probability or greater) aggravated (e.g., worsened beyond the normal progression of that disease) by the service-connected acquired psychiatric disability. 2. Obtain an addendum VA medical opinion from a qualified medical professional concerning whether the Veteran's hepatitis C is at least as likely as not (50 percent probability or greater) etiologically related to his air gun inoculations during service. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner(s). If a new examination(s) is indicated, one should be provided to the Veteran. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.