Citation Nr: 0810094 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-05 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) or a schizo-affective disorder, to include whether the claim may be granted. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from June 1958 to January 1959. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a hearing at the RO before a Member of the Board in January 2008. Hearing loss was denied as not well grounded by unappealed rating of April 2000. It has been considered on a de novo basis by the RO and is herein by the Board. This provides the broadest possible review of the evidence. This issue of service connection for an acquired psychiatric disorder, including PTSD and a schizo-affective disorder, on a de novo basis is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. Bilateral hearing loss was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 2. Service connection for emotional instability was denied by the RO in an April 1964 rating action. It was held that the veteran was found to have a personality disorder during service which was not a VA disability for compensation purposes. The veteran was notified of this action and of his appellate rights, but failed to file a timely appeal. 3. In April 2000 service connection for a psychiatric disorder was denied as it was held that new and material evidence had not been submitted. This is the last final denial on any basis. 4. Since the April 1964 decision denying service connection for emotional instability, and the April 2000 rating action, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Bilateral hearing loss was neither incurred in nor aggravated by service, nor may sensorineural hearing loss be presumed to be incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. The additional evidence submitted subsequent to the April 2000 decision of the RO is new and material; thus, the claim for service connection for an acquired psychiatric disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. In VCAA letters dated in May 2003 and March 2005, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the May 2003 letter provides sufficient notice as to what is needed in terms of new and material evidence so as to satisfy the notice provisions of Kent. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Moreover, this claim is being reopened negating any prejudice that may be present were the letter found insufficient to deal with Kent. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In March 2006, the veteran was given the necessary notifications. Finally, all appropriate development has been undertaken. There is no showing that there are additional records or other evidence that should or could be obtained prior to entry of a decision at this time. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran is claiming service connection for bilateral hearing loss. The Board has reviewed all of the evidence of record, including available service treatment records, records of treatment subsequent to service and the veteran's testimony at his hearing before the undersigned in January 2008, and can find no basis to establish service connection for hearing loss. Regarding the claim for service connection for bilateral hearing loss, it is noted that at his hearing the veteran testified that he was exposed to the acoustic trauma of aircraft engines during his service on board an aircraft carrier in the United States Navy. Review of the record shows no complaint or manifestations of hearing loss during service or within one year thereafter. Bilateral hearing loss is first shown of record on audiometric examination dated in March 2000. At that time, sensorineural hearing loss was diagnosed. The veteran reportedly remembered hearing problems from 1969. There was no medical opinion relating this disorder to the veteran's period of service, including by exposure to acoustic trauma while on active duty. While the veteran testified at his hearing that he believed that there was such a relationship, it is noted that he is a layman, and, as such, is not competent to give an opinion requiring medical knowledge such as involved in making diagnoses or explaining the etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Under these circumstances, as there is no objective medical evidence establishing that the veteran's hearing loss is related to service, the claim must be denied. The veteran is also claiming service connection for an acquired psychiatric disorder. It is noted that service connection was previously denied for emotional instability, which is a personality disorder, in 1964 without appeal by the veteran. A personality disorder is not an acquired psychiatric disorder, and is not a disability for which compensation benefits may be awarded. Beno v. Principi, 3 Vet. App. 439 (1992). Subsequently it was held in April 2000 that there was no new and material evidence to reopen the claim. More recent evidence included a diagnosis of PTSD, the credibility of which must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As such, to the extent that the 1964 and 2000 rating are considered to have been final disallowances, the recently received evidence of the acquired psychiatric disorder is considered to be sufficient to reopen the claim when its credibility is presumed. To this extent the appeal is granted. ORDER Service connection for bilateral hearing loss is denied. New and material evidence having been received, the claim for service connection, including PTSD or a schizo-affective disorder, is reopened. The claim is granted to this extent. REMAND Having decided that the claim is reopened, all the evidence on file must now be considered. Prior to consideration, however, the Board must determine if it can conduct a de novo review without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). After review of the evidence it is concluded that additional development is needed such that the Board may not proceed without prejudice to the veteran. In his correspondence and sworn testimony before the undersigned, the veteran asserts that he has PTSD as a result of a sexual assault that occurred while he was on active duty. The following provisions apply to claims based on in-service personal assault: If a post-traumatic stress disorder claim is based on in- service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post- traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). It is noted that the veteran was diagnosed as having an emotional instability reaction while on active duty. It is believed that an examination to ascertain whether this represented evidence of a behavior change that could constitute credible supporting evidence of a stressor must be conducted prior to appellate review. It should also be determined whether the symptoms in service represent the early onset of the psychiatric disorder more recently noted. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO/AMC should schedule a VA psychiatric examination in order to determine the etiology, nature and severity of any psychiatric illness, to include PTSD. The claims folder must to be made available to the examiner in conjunction with the examination. All indicated tests are to be conducted. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or greater) that the veteran has PTSD or any other psychiatric disorder as the result of service, including whether the emotional instability reaction was at least as likely as not (probability 50 percent or greater) a result of sexual assault while in service. It should also be indicated whether the in-service symptoms are evidence of the early onset of any psychiatric disorder subsequently diagnosed. A complete rational of any opinion expressed should be included in the examination report. If it is not possible to respond to any of the above requests without resort to speculation, that should be noted in the claims files. 2. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable the veteran and his representative, should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The veteran and his representative should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs