Citation Nr: 23014751 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 19-34 829 DATE: March 10, 2023 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II (diabetes). New and material evidence has been received to reopen the claim of entitlement to service connection for a sinus disorder. New and material evidence has been received to reopen the claim of entitlement to service connection for hernia. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for diabetes is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to service connection for a sinus disorder is remanded. FINDINGS OF FACT 1. A June 2006 rating decision denied service connection for diabetes mellitus, hiatal hernia, an acquired psychiatric disorder, and a sinus disorder. The Veteran did not appeal that rating decision and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the June 2006 rating decision is neither cumulative nor redundant of evidence at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder, hernia, diabetes, and a sinus disorder. 3. The Veteran's major depressive disorder had its onset in service. 4. The Veteran's obstructive sleep apnea is proximately due to his service-connected major depressive disorder. CONCLUSIONS OF LAW 1. The June 2006 rating decision in which the RO denied the claims of entitlement to service connection for diabetes mellitus, hiatal hernia, an acquired psychiatric disorder, and a sinus disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The previously denied service connection claims for an acquired psychiatric disorder, hernia, diabetes, and a sinus disorder are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.303. 4. The criteria for entitlement to secondary service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1969 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a timely substantive appeal in January 2020 involving the issues of entitlement to increased ratings for tinnitus, Grave's disease, gout, hypertension, and entitlement to an earlier effective date for tinnitus. At present, the issues have not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to the claims of entitlement to increased ratings for tinnitus, Grave's disease, hypertension, gout, and entitlement to an earlier effective date for tinnitus, the Board declines to take any further action on these issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The Board has notified the AOJ as to the action needed in this regard, and encourages the Veteran to work with his attorney to ensure that the AOJ certifies this appeal to the Board. New and Material Evidence Under VA's legacy appeals system, which governs this appeal, a rating decision is final unless it is timely appealed and perfected, or if new and material evidence is received within one year of the issuance of the decision. However, a final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. § 5108 (as in effect prior to February 19, 2019); 38 C.F.R. § 3.156. New and material evidence must not be cumulative or redundant of the evidence of record. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. A June 2006 rating decision denied entitlement to service connection for an acquired psychiatric disorder as there was no evidence of a current diagnosis. The Veteran did not appeal the rating decision and new and material evidence was not actually or constructively received within the remainder of the appeal period. Thus, the June 2006 rating decision became final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence associated with the record more than one year after the issuance of the June 2006 rating decision includes a February 2018 VA examination report, which includes diagnoses of major depressive disorder (MDD). As this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran's claim, it is considered new and material, and the claim is reopened. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes. A June 2006 rating decision denied entitlement to service connection for a diabetes as there was no evidence of an in-service diagnosis or a link between diabetes and a service-connected disability. The Veteran did not appeal the rating decision and new and material evidence was not actually or constructively received within the remainder of the appeal period. Thus, the June 2006 rating decision became final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence associated with the record more than one year after the issuance of the June 2006 rating decision includes an article entitled "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort," indicating a link between diabetes, hypertension and acquired psychiatric disorders. As this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran's claim, it is considered new and material, and the claim is reopened. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for hiatal hernia. A June 2006 rating decision denied entitlement to service connection for a hiatal hernia as there was no evidence of an in-service diagnosis. The Veteran did not appeal the rating decision and new and material evidence was not received within the remainder of the appeal period. Thus, the June 2006 rating decision became final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence associated with the record more than one year after the issuance of the June 2006 rating decision includes private treatment records acknowledging the Veteran's complaint of hernia residuals and the Veteran's report of an in-service hernia due to his military occupational specialty (MOS) as a refrigeration and air conditioning technician. See January 2006 private treatment record (received July 25, 2017). Furthermore, VA has since acknowledged that the Veteran was treated for a hiatal hernia in-service. See September 2019 statement of the case. As this new evidence tends to show a more complete picture of the circumstances surrounding the origin of the Veteran's disability, the Board will reopen this claim. 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). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a sinus disorder. A June 2006 rating decision denied entitlement to service connection for a sinus disorder as there was no evidence of a current diagnosis. The Veteran did not appeal the rating decision and new and material evidence was not received within the remainder of the appeal period. Thus, the June 2006 rating decision became final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence associated with the record more than one year after the issuance of the June 2006 rating decision includes VA and private treatment records noting diagnoses of rhinitis and sinusitis. As this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran's claim, it is considered new and material, and the claim is reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of 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 claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 5. Entitlement to service connection for an acquired psychiatric disorder, to include MDD, is granted. Initially, the Board notes that the Veteran has a current diagnosis of MDD. See February 2018 VA Examination Report. The Veteran's service treatment records (STRs) reflect complaints of hyperventilation in November 1974, anxiety in January 1984 following his father's heart attack, and sleep impairment in July 1987. Thus, the first and second elements of service connection are established. Thus, this appeal turns on whether there is a nexus between the Veteran's current acquired psychiatric disorder and service. The Veteran has competently and credibly reported that he experienced depression in service and continuously since that time. See September 2018 private treatment record (The Veteran endorsed depression since the 1980's). Furthermore, in October 2019, a fellow servicemember indicated that he witnessed the Veteran's display of paranoia, lack of trust, increase of anger, isolation, and social withdrawal during service. Likewise, in October 2019, the Veteran's sister-in-law indicated that the Veteran was anxious, paranoid, angry, and that he avoided family functions during active duty. The February 2018 VA examiner opined that the Veteran's MDD was less likely than not related to the in-service report of anxiousness and insomnia. In providing a negative opinion, the examiner highlighted the Veteran's report of depressed mood, anhedonia, sleep impairment, fatigue, and low self-esteem since 2007. The examiner also linked the Veteran's depression to his in-service use of alcohol abuse. However, the Board notes that private treatment records as early as May 2005, note that the Veteran was prescribed medication for depression. In January 2006, the Veteran reported that he was irritable, nervous, and that he experienced memory loss and social avoidance. See January 2006 statement. In March 2006, the Veteran reported occasional depression and fatigue. See March 2006 VA examination report. The Board finds the February 2018 VA medical opinion has no probative value, as the VA examiner impermissibly ignored the Veteran's lay statements and the opinion is based on an inaccurate factual premise (namely onset in 2007). Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Dalton v. Nicholson, 21 Vet. App. 23 (2007). In October 2019, a private licensed psychologist, H.H.G., reviewed the Veteran's medical history and took into consideration the various lay statements regarding the onset of the Veteran's depression during active duty, and opined that the Veteran's major depressive disorder began during service. In rendering her opinion, she highlighted the Veteran's in-service endorsement of depression and indicated his depression has continued from service through the present at varying levels of severity. Dr. H.H.G. provided an understandable and rational basis for her opinion, and relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no competent evidence to the contrary. Accordingly, element three is also met. In sum, the evidence of record reflects that the Veteran's psychiatric disorder had its onset in service. Thus, service connection is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. Entitlement to service connection for obstructive sleep apnea is granted. In this case, the Veteran seeks service connection for a sleep disorder on both a direct and secondary basis. As secondary service connection is warranted without a baseline deduction, only that theory of entitlement will be addressed in the instant decision. Service connection may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Initially, the Board notes that the Veteran has a current diagnosis of obstructive sleep apnea. See February 1999 sleep study; November 2019 disability benefits questionnaire (DBQ). In November 2019, following a review of the claims file and an interview with the Veteran, Dr. S.E. opined that the Veteran's obstructive sleep apnea is proximately due to his MDD. In this regard, Dr. S.E. noted that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea. Further, Dr. S.E. reasoned that the Veteran's prescribed Zoloft is known to have significant sedating effects, and that studies have shown that Zoloft therapy cause increased sleep onset latency and/or increased number of awakenings and arousals, leading to a decrease in sleep efficiency. As service connection for MDD is now established, secondary service connection for obstructive sleep apnea is warranted. REASONS FOR REMAND 7. Entitlement to service connection for diabetes mellitus is remanded. The Veteran asserts that his diabetes is due to his service-connected disabilities to include hypertension and MDD, and medication to treat his disabilities. He has a current diagnosis of diabetes and is service-connected for hypertension and MDD and takes medications for his service-connected disabilities, triggering VA's duty to obtain an examination and medical nexus opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). 8. Entitlement to service connection for vertigo is remanded. The Veteran seeks service connection for vertigo, or a disability manifested by dizziness. Private treatment records reflect a diagnosis of vertigo, treated with medication. See September 2018 private treatment record. Furthermore, in discussing his hypertension symptoms, the Veteran has reported occasional dizziness. See September 2019 VA examination report. The Veteran's STRs document multiple complaints of dizziness in March, July, and September 1987. Accordingly, the Board finds that the low standard detailed in McLendon is met and a VA examination and medical nexus opinion is warranted and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, based on the service-connected conditions and related symptoms, the Board finds that it is appropriate to expand the scope of the Veteran's claim to include entitlement to service connection on a secondary basis. 9. Entitlement to service connection for a hernia is remanded. The Veteran asserts that service connection is warranted for residuals of a hernia. The Veteran has reported that the frequently heavy lifting associated with his MOS as a refrigeration and air conditioning technician caused nausea and shortness of breath. See January and March 2006 statements. A review of the Veteran's STRs confirms that he was diagnosed with a hiatus hernia and duodenal bulb ulcer in December 1976. Accordingly, the Board finds that the low standard detailed in McLendon is met and a VA examination and medical nexus opinion is warranted and should be obtained on remand. McLendon, supra. 10. Entitlement to service connection for a sinus disorder is remanded. The Veteran asserts that his sinus disorder is due to his service-connected thyroid disability. He has current diagnoses of sinusitis and rhinitis, was treated for sinus problems in service, and is service-connected for Grave's disease. Thus, VA's duty to obtain an examination and medical nexus opinion is triggered. Id.; see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Updated VA and private treatment records should be associated with the record. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: For currently diagnosed diabetes (see October 2012 private treatment records), please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability: (a) had its onset in service or within one year of service or is otherwise related to service; (b) is proximately due to his service-connected disabilities, to include but not limited to bilateral hearing loss, MDD, and hypertension and/or medications used for his service-connected disabilities; (c) is aggravated (worsened) by his service-connected disabilities, to include but not limited to bilateral hearing loss, MDD, and hypertension; (d) is aggravated (worsened) by medications used for his service-connected disabilities and/or medications used for his service-connected disabilities. Please address the article entitled "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort," indicating a link between diabetes, hypertension and acquired psychiatric disorders. See August 2020 Third Party Correspondence. Please note that it is not necessary that the service-connected disabilities (hypertension, hearing loss, MDD) or any other service-connected disability be service-connected, or even diagnosed, at the time his diabetes is incurred to support secondary service connection, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Schedule the Veteran for a VA examination to address the current nature and etiology of his disorder manifested by dizziness. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should address the following: (a) Identify all current disorders manifested by dizziness, to include vertigo. For the purposes of this question, a current disability or functional impairment includes any disability or impairment present since April 2017, even if subsequently resolved. See September 2018 private treatment record; September 2019 VA examination report. (b) For each disorder diagnosed in subpart (a), opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disorder had its onset during or is otherwise etiologically related to the Veteran's active duty service, to include in-service complaints of dizziness therein. See March, July, and September 1987 STRs. The examiner should provide a separate opinion for each condition diagnosed in subpart (a). In addressing this question, the examiner is advised that the Board has accepted the Veteran's competent and credible reports of continuity of symptomatology since service as true and determine whether a nexus to service is "medically plausible" based on the same. See December 1989 VA examination report (The Veteran endorsed dizziness.) (c) For each disorder diagnosed in subpart (a), opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disorder (1) is proximately due to or (2) aggravated (worsened) by a service-connected disability, to include but not limited to tinnitus and medication to treat his service-connected disabilities. In addressing secondary service connection, please note that the service-connected disability need not be diagnosed or service-connected at the time disorder manifested by dizziness is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any hernia disorder. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Identify all hernia-related disorder by either (1) diagnosis or (2) functional impairment. (b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hernia/functional impairment is related to service, to include his December 1976 diagnosis of hiatus hernia and duodenal bulb ulcer and frequent heavy lifting the Veteran reports he experienced while serving as a refrigeration and air conditioning technician for twenty years? In addressing this question, the examiner is advised that the Board has accepted the Veteran's competent and credible reports of continuity of symptomatology since service as true and determine whether a nexus to service is "medically plausible" based on the same. See January and March 2006 statements (The Veteran reported experiencing nausea and shortness of breath.) A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his sinus disorder. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: For currently diagnosed sinus disorder, to include sinusitis and allergic rhinitis (see September and December 2018 private treatment records), please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability: (a) had its onset in service or is otherwise related to service, to include his documented complaints of congestion, sore throat, and chronic coughing. See January 1980; December 1981; March 1984, August 1988 STRs; In addressing this question, the examiner is advised that the Board has accepted the Veteran's competent and credible reports of continuity of symptomatology since service as true and determine whether a nexus to service is "medically plausible" based on the same. (b) is proximately due to his service-connected disabilities, to include but not limited to Grave's disease and obstructive sleep apnea; (c) is aggravated (worsened) by his service-connected disabilities, to include but not limited to Grave's disease and obstructive sleep apnea; Please address the Veteran's report that he is unable to use his CPAP when his sinuses are burning. See December 2018 private treatment record. Please note that it is not necessary that the service-connected disability (grave's disease) or any other service-connected disability be service-connected, or even diagnosed, at the time his sinus disorder is incurred to support secondary service connection, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.