Clayton v. McDonough, 20-2915
| Decision Date | 14 July 2021 |
| Docket Number | 20-2915 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Thomas M. Clayton, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Thomas M. Clayton VA General Counsel (027)
Before MEREDITH, Judge.
The pro se appellant, Thomas M. Clayton, appeals a January 16, 2020 Board of Veterans' Appeals (Board) decision that declined to reopen claims for benefits for a respiratory disorder including as due to smoke inhalation, and obstructive sleep apnea (OSA), and denied benefits for hearing loss and an acquired psychiatric disorder, including a depressive disorder and anxiety. Record (R.) at 4-21. The Board reopened a claim and granted benefits for tinnitus. These are favorable findings that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) (). This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board's decision declining to reopen claims for benefits for a respiratory disorder, including as due to smoke inhalation, and OSA, and denying benefits for hearing loss and an acquired psychiatric disorder, including a depressive disorder and anxiety.
The appellant served on active duty in the U.S. Marine Corps from November 1986 to May 1991. R. at 740. His enlistment examination report contains the following audiogram results:
Hertz
500
1000
2000
3000
4000
Right
-5
5
-5
5
Left
5
5
10
R. at 59 (). An in-service July 1989 audiogram reflects the following levels:
Hertz
500
1000
2000
3000
4000
Right
15
10
5
5
-5
Left
10
10
5
10
5
R. at 60. At separation, his ears, sinuses, lungs and chest, and psychiatric condition were clinically evaluated as normal. R. at 63-64. The appellant denied hearing loss; ear, nose, or throat trouble; chronic or frequent colds; shortness of breath; pain or pressure in his chest; a chronic cough; frequent trouble sleeping; depression or excessive worry; or nervous trouble of any sort. R. at 71; see R. at 71-72.
In May 2014, the appellant underwent a private sleep study; the physician noted an impression of moderate sleep apnea. R. at 724. VA treatment records further reflect a positive screening for post-traumatic stress disorder (PTSD), a negative screening for depression, and an assessment of moderate OSA. R. at 365-67, 376-78.
The appellant applied for benefits for breathing difficulties and sleep apnea in July 2014. R. at 689-90; see R. at 397. In April 2015, he underwent VA examinations for his claimed respiratory condition and OSA as part of a Gulf War general medical examination. R. at 428-44. The examiner noted the appellant's report of a "nocturnal cough for a period following return from the Gulf that resolved," but indicated that, because "there [wa]s no current respiratory diagnosis or issue," she was "unable to entertain causation relating to a Gulf War exposure." R. at 432. Regarding OSA, the examiner acknowledged that the appellant had a current diagnosis of sleep apnea but concluded that "there [wa]s no undiagnosed sleep disturbance that could be attributed to a Gulf War exposure." R. at 435.
A VA regional office (RO) denied benefits for breathing difficulties from smoke inhalation and OSA later that month. R. at 381-402. The RO found no diagnosed respiratory condition, no undiagnosed illness or medically unexplained chronic multisymptom illness, no nexus between the appellant's OSA and military service, and no undiagnosed sleep disturbance. R. at 399-400.
In November 2016, a VA physician referred the appellant for mental health treatment; he was diagnosed with depression and PTSD symptoms later that month. R. at 301-03, 305. One year later, he applied for benefits for OSA, anxiety, depression, and hearing loss. R. at 333-41. He asserted that, "[a]s a [c]annoneer, [he] was always around the big guns [in service] and when they went off without ear protectors you would go deaf"; that "[t]he water from Camp Lejeune[] has [him] worried and depressed"; that he experienced "difficulty in sleeping" and anxiety and depression whenever he thinks about his time in Kuwait; and that "[w]atching and smelling the burning oil wells ha[d] done things to [his] breathing." R. at 336.
The appellant underwent a VA hearing loss examination in December 2017. R. at 277-85. The examination report reveals the following audiogram results:
Hertz
500
1000
2000
4000
Right
10
5
5
10
Left
10
5
10
R. at 278. His speech discrimination scores from the Maryland CNC test were 100% for both ears, and the examiner diagnosed him with normal hearing. R. at 278-81.
The appellant also underwent a VA PTSD examination in January 2018. R. at 249-55. The examiner diagnosed an unspecified depressive disorder but opined that it is less likely than not due to or incurred in service and found that the appellant did not meet the diagnostic criteria for PTSD under the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. R. at 249, 254. Later that month, the RO denied the appellant's claims for benefits for hearing loss, anxiety, and an unspecified depressive disorder, claimed as depression, and declined to reopen the previously denied claims for a respiratory condition and OSA. R. at 164-82. The appellant disagreed with the RO's decision and perfected an appeal to the Board. R. at 47-49, 97-129, 154-58. He in part contended that "[s]moke was a frequent problem during Desert Storm"; questioned whether the April 2015 and January 2018 VA examiners were competent to provide their respective opinions; asserted that hearing loss evaluations should not be conducted "in a very controlled ([s]ilent) environment"; and stated that the VA examiner who diagnosed depression should have talked to his spouse "to see what her side of the story was[.]" R. at 157-58.
The Board issued the decision on appeal in January 2020, declining to reopen claims for a respiratory disorder, including as due to smoke inhalation, and OSA, and denying benefits for hearing loss and an acquired psychiatric disorder. R. at 4-21. This appeal followed.
In his informal brief, which the Court construes liberally, see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992), the appellant asserts that the burn pits and smoke in service caused his breathing problems, contributed to OSA, and added to his anxiety and depression. Appellant's Informal Brief (Br.) at 1. He contends that he is unable to hear as well as when he was younger, which he also attributes to military service, and asserts that the Board erred by failing to afford him the benefit of the doubt. Appellant's Informal Br. at 1-2. Further, he reiterates the assertions he made in his disagreement with the RO's January 2018 decision, and asks the Court to grant benefits for all the claimed conditions, including tinnitus. Appellant's Informal Br. at 3, Attachment at 1-2; see R. at 157-58. The Secretary requests that the Court dismiss the appellant's purported appeal of the Board's decision to reopen a claim and award benefits for tinnitus. Secretary's Br. at 2, 14-15. Otherwise, the Secretary asserts that the Court should affirm the Board's decision. Secretary's Br. at 7-15.
For claims to reopen for which VA provided notice of a decision prior to February 19, 2019, see 38 C.F.R. §§ 3.2400(b), 19.2(a) (2021), "[i]f 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," 38 U.S.C. § 5108 (2012 & Supp. IV 2017); see 38 C.F.R. § 3.156(a) (2021). The evidence "must be both new and material." Smith v. West, 12 Vet.App. 312, 314 (1999). "New evidence is evidence not previously part of the actual record before agency adjudicators," and 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." 38 C.F.R. § 3.156(a). 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); see Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Further, establishing that a disability is service connected for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2021).
Whether the record establishes entitlement to service connection and whether new and material evidence has been submitted are findings of fact, which the Court reviews under the "clearly erroneous" standard of review. See Prillman v. Principi, 346 F.3d 1362, 1366-67 (Fed. Cir. 2003); Russo v. Brown, 9 Vet.App. 46,...
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