Citation Nr: 21041605 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-11 641 DATE: July 9, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for acute respiratory disorder is denied. Entitlement to service connection for esophageal cancer is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for kidney failure is denied. Entitlement to service connection for Human Immunodeficiency Virus (HIV) is denied. Entitlement to service connection for narcolepsy is denied. REMANDED Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in an unappealed June 1992 rating decision; evidence received since the June 1992 rating decision is new and relates to an unestablished fact necessary to substantiate the PTSD claim. 2. A respiratory disorder was not manifest during active service; and the preponderance of the evidence fails to establish that any such current disability is etiologically related to service. 3. The preponderance of the evidence of record is against finding that the Veteran has had esophageal cancer at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had diabetes mellitus at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against finding that the Veteran has had kidney failure at any time during or approximate to the pendency of the claim. 6. The preponderance of the evidence fails to establish that HIV is etiologically related to service. 7. The preponderance of the evidence of record is against finding that the Veteran has had narcolepsy at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for acute respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for kidney failure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for HIV have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for narcolepsy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in December 2018 for further development. In December 2017, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge; a transcript of that hearing is of record. The law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran was notified that the VLJ that conducted his hearing is no longer employed by the Board by way of a January 2021 letter. He was offered the opportunity to have a new hearing and was notified that if he did not respond within 30 days, the Board would assume that he does not desire an additional hearing and would proceed with adjudication of the claim. The Veteran has not responded to this letter. Thus, the Board will proceed to consider the claim without additional hearing testimony. 1. New and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD) VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108. Service connection for PTSD was denied in a June 1992 rating decision. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156 (b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In March 2011, VA received an application to reopen the claim. Upon review of the record, the Board finds that new and material evidence sufficient to reopen the claim has been obtained. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The June 1992 denial was based on a finding that the Veteran did not have a diagnosis of PTSD. Subsequent VA treatment records note treatment for PTSD. Such evidence is presumed credible solely for the purposes of determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA treatment records provide evidence of a current diagnosis of PTSD, a previously unestablished fact needed to substantiate the claim. The appeal is reopened. The reopened claim will be addressed in the REMAND section below. 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, 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for acute respiratory disorder The service treatment records do not show any complaint or findings related to a respiratory disorder. The service separation examination in August 1971 noted normal lungs and chest, and normal chest X-ray. A January 1985 VA hospitalization report noted the Veteran smoked a pack of cigarettes per day since the age of 19. Pulmonary function testing (PFT) in August 2004 was suggestive of emphysema. Stage one chronic obstructive pulmonary disease (COPD) was noted. A June 2007 treatment record noted the Veteran smoked two packs of cigarettes per day. A November 2007 treatment record noted the Veteran smoked one and a half packs of cigarettes per day. PFT in November 2011 showed mild obstructive defect. The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish an in-service incurrence. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran was diagnosed with emphysema and COPD in 2004 after many years of smoking. The objective record does not contain any competent evidence linking a respiratory disorder with his period of service. The preponderance of the evidence is against the claim for service connection for a respiratory disorder; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for esophageal cancer The service treatment records do not contain any complaint or treatment for esophageal cancer. The August 1971 separation examination noted normal mouth and throat. There is no evidence of a diagnosis of esophageal cancer in the medical records associated with the claims file. There is no diagnosis of esophageal cancer by a medical professional at any time during or since service, and the Veteran is not shown to be competent to diagnose such disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish an in-service incurrence or a current disability. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The preponderance of the evidence is against the claim for service connection for esophageal cancer; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b). 4. Entitlement to service connection for diabetes mellitus The service treatment records do not contain any complaint or treatment for diabetes mellitus. The August 1971 separation examination noted albumin and sugar were normal. A VA examiner interviewed the Veteran by telephone in June 2020. After reviewing the record, the examiner stated that there is no evidence that Veteran has a diagnosis of diabetes mellitus or has had diabetes mellitus type II at any time since approximately July 2010. He denies having ever been diagnosed with or treated for diabetes. There is no evidence of a diagnosis of diabetes mellitus in the medical records associated with the claims file. There is no diagnosis of diabetes mellitus by a medical professional at any time during or since service, and the Veteran is not shown to be competent to diagnose such disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The preponderance of the evidence is against the claim for service connection for diabetes mellitus; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b). 5. Entitlement to service connection for kidney failure The service treatment records do not contain any complaint or treatment for a kidney problem. The August 1971 separation examination noted normal genitourinary system. A January 1985 VA hospitalization record noted proteinuria. This was thought to be secondary to viral infection; subsequent testing showed the problem was inactive. Ultrasound of the kidneys was normal. A February 2009 treatment record noted the Veteran reported a past medical history of kidney disease. A March 2011 treatment record noted that the Veteran had no kidney disease. A June 2011 ultrasound showed two small cysts at the level of the right kidney. The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish an in-service incurrence. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not been shown to have kidney failure and the Veteran is not shown to be competent to diagnose such disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The objective record does not contain any competent evidence linking a kidney disorder with his period of service. The preponderance of the evidence is against the claim for service connection for kidney failure; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b). 6. Entitlement to service connection for HIV The Veteran tested negative for HIV in April 1991, July 1991, and April 1992. HIV was diagnosed in January 1995. The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish an in-service incurrence. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran was diagnosed with HIV in 1995 after multiple negative tests in the early 1990s. The objective record does not contain any competent evidence linking his HIV with his active service. The Veteran has attributed his HIV to a tainted needle during a prison stay. The preponderance of the evidence is against the claim for service connection for HIV; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b). 7. Entitlement to service connection for narcolepsy The service treatment records do not contain any complaint or treatment for narcolepsy. On an April 2011 VA psychiatry note, the examiner reported that the Veteran would become sleepy and then awake abruptly. The Veteran reported that he had an appointment to address potential narcolepsy; the examiner noted that no record of this appointment was found. An April 2012 sleep study diagnosed moderate sleep apnea. On a May 2014 depression screen, the Veteran endorsed trouble falling/staying asleep, or sleeping too much. There is no evidence of a diagnosis of narcolepsy in the medical records associated with the claims file. There is no diagnosis of narcolepsy by a medical professional at any time during or since service, and the Veteran is not shown to be competent to diagnose such disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish an in-service incurrence or a current disability. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The preponderance of the evidence is against the claim for service connection for narcolepsy; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran contends that he has PTSD that is related to his period of service in Vietnam. He served in Vietnam in field artillery and the RO has conceded a stressor based on fear of hostile military activity. The Veteran has been service-connected for schizophrenia since 1971. He has been assigned a 100 percent rating for that disability throughout the appeal period. He was diagnosed with schizophrenia in service and hospitalized for it on numerous occasions after service. A VA examiner in February 2012 determined that the Veteran did not meet the criteria for a PTSD diagnosis under DSM-IV. VA outpatient treatment records, including from 2011 and 2017-2020, show diagnoses of PTSD. The Board remanded the case in December 2018 for an examiner to indicate whether the Veteran met the criteria for PTSD under DSM 5. The examiner was also asked to "clearly indicate whether the Veteran currently meets, or has met, the diagnostic criteria for PTSD under the DSM 5 at any time since approximately July 2010. If the Veteran has not met the criteria for a diagnosis of PTSD at any time during this period, the opinion provider must clearly so state and explain why, reconciling such conclusions with the various diagnoses of PTSD of record." An examiner in June 2020 found that the Veteran did not meet the criteria for a PTSD diagnosis under DSM 5, and had not met it during the appeals period. However, the examiner did not specifically refer to the diagnoses of PTSD of record or reconcile such diagnoses as directed in the remand. A remand is required to ensure compliance with the prior remand instructions and ensure an adequate examination is afforded to the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matter is REMANDED for the following action: Return the file to the June 2020 VA examiner for an addendum opinion. If that examiner is not available, an opinion must be obtained from an appropriate medical professional. The examiner is to specifically address the diagnoses of PTSD in the medical record, including the Veteran's outpatient/group-therapy for PTSD noted in 2011 and from 2017-2020. The examiner is to reconcile these diagnoses/treatments with the stated opinion in the June 2020 report that the Veteran has not met the criteria for a diagnosis of PTSD at any time during the appeals period. A clear rationale must be provided. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.