Citation Nr: 22014064 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-33 194 DATE: March 11, 2022 ORDER New and material evidence having been received to reopen a claim of entitlement to service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve, and to that extent only, is granted. Entitlement to service connection for Post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for Crohn's Disease, to include colitis, is denied. Entitlement to service connection for an acquired psychiatric condition to include Other Specified Trauma and Stress Related Disorder, and Adjustment Disorder is granted. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for headache condition is remanded. Entitlement to service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a November 2009 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a low back condition. He did not appeal the decision nor was new and material evidence received within one year. 2. The evidence received since the November 2009 decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for low back condition and, if presumed credible, raise a reasonable possibility of substantiating the claim. 3. The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for PTSD, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. 4. The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for Crohn's Disease, to include colitis, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. 5. The Board finds that the evidence is in approximate balance connection for an acquired psychiatric condition to include Other Specified Trauma and Stress Related Disorder and Adjustment Disorder, and therefore, the Board resolves the benefit of the doubt in favor of the Veteran. 6. The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for tinnitus, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. 7. The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for bilateral hearing loss, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. CONCLUSIONS OF LAW 1. The November 2009 rating decision denying the claim of entitlement to service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for entitlement to service connection for Crohn's Disease, to include colitis have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. 5. The criteria for entitlement to service connection for Other Specified Trauma and Stress Related Disorder and Adjustment Disorder have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. 6. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. 7. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1992 to February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from the June 2015 and July 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for bilateral hearing loss, tinnitus, and headaches were remanded for further development in September 2019. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999) but see 38 U.S.C. § 5103A (eliminating the concept of a well-grounded claim). In this case, the Veteran's claim for entitlement to service connection was denied by the RO in November 2009. The Veteran did not appeal the decision and it became final. The appellant requested that his claim for entitlement to service connection be reopened and was subsequently denied in July 2018. At the time of the RO's November 2009 decision, the evidence of record consisted of the appellant's lay statements and correspondence. The evidence received since the last final denial includes additional medical records and lay statements. The Board finds that some of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve. In this regard, the Board is mindful of the low threshold for reopening a previously denied claims. Shade, 24 Vet. App. at 110. The additional medical records and the Veteran's supplemental statements were not within the claims folder at the time of the November 2009 denial. The new records and lay statements go to the basis of the Veteran's claim for entitlement to service connection. Thus, the Board finds the additional statements new and material. Accordingly, the Board concludes that evidence has been received which is new and material, and the claim for service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve is reopened. Service Connection 2. Entitlement to service connection for PTSD The Veteran contends that he has PTSD related to his military service. The question for the Board is whether the Veteran has PTSD that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has PTSD for VA purposes. The Veteran was afforded a VA psychiatric examination in February 2018. A close review of that examination reveals that the VA examiner, after noted consideration of the Veteran's medical history, and claimed inservice stressor, found that the Veteran's symptoms and condition did not amount to a PTSD diagnosis under the appropriate DSM-5 criteria. Instead, the Veteran was diagnosed with unspecified depressive disorder with anxiety, such condition will be addressed in another section herein. The Board acknowledges that the Veteran's claim that he has PTSD due to his active service, and while he may be competent to report his observable symptoms, he has not been shown to be competent to provide a diagnosis of a psychiatric condition. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the claimed condition for VA purposes. The Board finds that such etiology findings and/or diagnosis of a complex psychiatric condition, fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds that the clinical evidence of record is more probative than the lay statements, and that a diagnosis for PTSD is not warranted. The Board is also cognizant that in various VA treatment records, the Veteran's treatment notes sometimes refer to treatment/medication for PTSD. In this regard, the Board does not find that such reference to constitute sufficient evidence of a diagnosis for PTSD, especially in light of the VA examination cited above. Here, the Board notes that there is no evidence that such notation was made in considering of the full DMS-5 criteria for PTSD, in conjunction to a review of the Veteran's medical history and stressor. As such, the Board does not find that such notations to be equally, or more, probative than the VA examinations for record. To this end, the Board notes that even the Veteran's own December 2019 private psychiatric examination, submitted to the Board, does not note a diagnosis for PTSD. As such, the Board finds that the weight of the probative evidence remains against the finding of a current diagnosis of PTSD. As explained above, the Veteran must have a disability during the appeal. The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for PTSD, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 3. Entitlement to service connection for Crohn's Disease, to include colitis The Veteran contends that he has Crohn's Disease that is related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran has Crohn's Disease that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has Crohn's Disease related to service. A February 2018 VA examination reflects the Veteran with a diagnosis of Crohn's Disease. However, the examiner opined that the Veteran's Crohn's Disease is less likely than not related to his military service. The examiner noted in-service treatment for acute gastroenteritis with fever and dehydration in 1993, but that it was a temporary viral condition that resolved with conservative management. The examination report further noted the Veteran's exit examination was negative for any gastrointestinal disorder. The examiner detailed that after several treatment and test, the Veteran was subsequently with Crohn's disease. Based on a review of the evidence of record, the Board concludes that service connection must be denied. The February 2018 examiner provided the negative nexus opinions and supporting rationale based upon complete review of the Veteran's claim file and medical history. A rationale was provided, citing not only the in-service acute gastroenteritis, but also the date of the Veteran's initial treatment for symptoms. As such, the Board must find that such opinion to be highly probative and dispositive of the claim. The Board recognizes the Veteran's lay contention, and that of his representative that his stomach condition is in fact related to his condition during service. However, there is no basis for concluding that laypersons such as the Veteran, or his representative, are competent of discerning the etiology of his Crohn's disease, in the absence of specialized medical training or credentials, which in this case has not established. 38 U.S.C. § 1153 (a); 38 C.F.R. §§ 3.303 (a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for Crohn's Disease, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 4. Entitlement to service connection for an acquired psychiatric condition to include Other Specified Trauma and Stress Related Disorder and Adjustment Disorder The Veteran contends that he has an acquired psychiatric condition related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has an acquired psychiatric condition that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran's an acquired psychiatric condition is etiologically related to the Veteran's active service. The Veteran was afforded a VA examination regarding the nature and etiology of his claimed psychiatric disability in February 2018. During that examination, the Veteran was diagnosed with a, unspecified depressive disorder, however, no nexus opinion was provided regarding this disability. In May 2018, the RO acquired an addendum opinion with regards to his diagnosed depressive disorder, to which the examiner found against any etiological nexus between the Veteran's claimed military sexual trauma, and his diagnosed depressive disorder. The examiner noted that the Veteran endorsed no psychiatric condition upon separation. In an August 2019 private medical opinion, the Veteran was noted with a diagnosis of Other Specified Trauma and Stressor-Related Disorder and Adjustment Disorder, in accordance with the DSM-5. The examiner opined that the Veteran's current mental disorder is at least as likely as not to be related to incidents that occurred during his active service, to explicitly include the Veteran's claimed in-service sexual assault. The Board finds that competent, credible, and probative evidence is at least in equipoise, with regards to the etiology of the Veteran's diagnosed psychiatric disabilities. As such, resolving the benefit of the doubt in favor of the Veteran, the Board must find that service connection is warranted. Therefore, the Board finds that the Veteran's claim for an acquire psychiatric disability to include Other Specified Trauma and Stress Related Disorder and Adjustment Disorder, must be granted. 5. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus related to his military service. The question for the Board is whether the Veteran has tinnitus that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has tinnitus related to service. A January 2020 VA examination reflects the Veteran with a diagnosis of tinnitus. However, during the examination, the Veteran explained that the onset of their tinnitus was 10 to 12 years prior. Approximately 14 years post military service. Further, upon examination the Veteran was found to have normal hearing, bilaterally. Thus, the examiner opined that the Veteran's tinnitus is less likely than not related to their military service. The Board notes also that the Veteran has not explicitly alleged, the evidence does not show that he has suffered from symptoms tinnitus since his active service. To this end, while there are extensive treatment records, to include from his private treating physicians and the VA, such records do not start until more than a decade after his separation from service. As such, the evidence does not support that the Veteran's tinnitus arose during or directly after (within a year) his active service. Consequently, the Board concludes that, as the evidence is persuasively against the claim for entitlement to service connection for tinnitus, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 6. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is related to his active service. The question for the Board is whether the Veteran has bilateral hearing loss that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has bilateral hearing loss for VA purposes. An essential element of a claim for service connection is evidence of a current disability. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A January 2020 VA examination report revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 5 15 LEFT 15 15 5 10 10 Speech recognition testing was found to be inappropriate for the Veteran due to various factors. Based on the foregoing, the Veteran does not have a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing). To this extent, the Board finds that the Veteran is competent to report that he has current hearing difficulty; however, he has not been shown to be competent to provide a diagnosis of hearing loss disability for VA purposes, as that is based on specific audiometric findings. The Board finds that the clinical evidence of record is more probative than the lay statements. As explained above, the Veteran must have a disability during the appeal. The Board concludes that, as the evidence persuasively favors against the claim for entitlement to service connection for bilateral hearing loss, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to service connection for headache condition The VA afforded the Veteran a VA examination to assess the nature and etiology of his claimed headaches. A close review of the January 2020 VA examination and September 2020 addendum nexus opinion reveals that such opinions are inadequate, and remand is required. Specifically, the Board notes that the VA examinations of record only addresses direct service connection with regards to the Veteran's claimed headaches. While such direct analysis is comprehensive, the Veteran, in his substantive appeal, has raised the entitlement theory of secondary service connection to his already service-connected sinusitis. As such, the Board finds that such new theory renders the previous opinion incomplete, and remand is required for the VA to fulfill its duty to the Veteran. 2. Entitlement to service connection for degenerative disc disease with disc bulge claimed as low back pain and spine curve is remanded. 3. Entitlement to service connection for a bilateral foot condition is remanded. 4. Entitlement to service connection for sleep apnea is remanded. The Board notes that the Veteran has not been provided VA medical examinations and/or opinions in regard to the claimed conditions and the evidence does not otherwise address whether the claimed conditions are related to service. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claims. In this case, without adequate medical examinations and medical opinions regarding to the Veteran's claimed conditions, the Board finds the current evidence to be insufficient to decide the claims. As such, the Board finds VA medical examinations and medical opinions are required by VA's duty to assist the Veteran in developing evidence to substantiate their claims to service connection. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom they have received treatment for their claimed disabilities and obtain any outstanding records and associate them with the Veteran's claims file. 2. Obtain an addendum opinion for the Veteran's claimed headaches. The electronic claims file must be made available to be reviewed by the examiner, and a note that it was reviewed should be included in the report. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Thereafter, the reviewer must provide a diagnosis for the Veteran's claimed headaches disability and determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's headaches had its onset in service or is otherwise related to service. Further, the examiner must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's headaches is proximately due to or aggravated (permanently worsened beyond the natural progress of the disorder) by the service-connected sinusitis. The examiner must provide a full rationale for all opinion provided. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA medical examination with an appropriately qualified examiner for the claim of service connection for low back condition. The claims file, to include this remand, should be made available for the examiner to review and the examination report should reflect that such review was accomplished. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has a low back condition related to an in-service injury, event, or disease. In providing the opinion, the examiner must consider and discuss any pertinent symptomatology documented in the Veteran's service treatment records, as well as the Veteran's lay statements regarding the onset and progression of the claimed condition. The rationale for all opinions must be provided. 4. Schedule the Veteran for a VA medical examination with an appropriately qualified examiner for the claim of service connection for bilateral foot condition. The claims file, to include this remand, should be made available for the examiner to review and the examination report should reflect that such review was accomplished. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has a bilateral foot condition related to an in-service injury, event, or disease. In providing the opinion, the examiner must consider and discuss any pertinent symptomatology documented in the Veteran's service treatment records, as well as the Veteran's lay statements regarding the onset and progression of the claimed condition. The rationale for all opinions must be provided. 5. Schedule the Veteran for a VA medical examination with an appropriately qualified examiner for the claim of service connection for sleep apnea. The claims file, to include this remand, should be made available for the examiner to review and the examination report should reflect that such review was accomplished. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has sleep apnea related to an in-service injury, event, or disease. In providing the opinion, the examiner must consider and discuss any pertinent symptomatology documented in the Veteran's service treatment records, as well as the Veteran's lay statements regarding the onset and progression of the claimed condition. (Continued on the next page) The rationale for all opinions must be provided. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.