Citation Nr: 0813272 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 02-21 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for vertigo, to include as secondary to service-connected disability. 3. Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from October 1963 to October 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Although the March 2001 rating decision reopened the veteran's claim of entitlement to service connection for PTSD and then denied the claim on its merits, the Board has a duty, under applicable law, to initially address the "new and material evidence" requirement in this claim. If it is found that no new and material evidence has been submitted, the merits of the claim may not be considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Accordingly, the Board has modified the issue to reflect the appropriate adjudicatory consideration of the veteran's claim, as indicated on the title page of this decision. The issue of entitlement to an increased evaluation for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. A January 1991 Board decision denied service connection for PTSD on the basis that he had not submitted new and material evidence to reopen the claim. The veteran and his then accredited representative were provided with copies of the Board's decision. 3. The evidence received since the January 1991 Board decision is new, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and is so significant that it must be considered in order to fairly decide the merits of the claim. 4. The veteran does not currently meet the diagnostic criteria for PTSD. 5. Any currently diagnosed vertigo did not have its onset in service and has not been etiologically linked to the veteran's service, any incident therein or to his service- connected disabilities. CONCLUSIONS OF LAW 1. The Board's January 1991 decision, which denied entitlement to service connection for PTSD, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2007). 2. The veteran has submitted new and material evidence sufficient to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). 3. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). 4. Vertigo was not incurred in active military service or as a result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A (f). To provide adequate notice with regard to a claim to reopen, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In reviewing the veteran's claims to reopen a claim of entitlement to service connection for PTSD and for service connection for vertigo, the Board observes that the RO issued VCAA notice to the veteran in a July 2007 letter which informed him of the evidence generally needed to support claims of entitlement to service connection; what actions he needed to undertake; the need to submit any evidence in his possession that pertained to the claims; and how the VA would assist him in developing his claim. The letter also informed him of the evidence needed for the assignment of evaluations and effective dates for his claims. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the July 2007 VCAA notification letter was not provided to the veteran until well after the March 2001 rating decision, the Board finds that "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate the claims." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board acknowledges that the VCAA letter discussed above was issued after the initial decision on the claims and does not specifically satisfy all of the notice requirements of section 5103(a), particularly the additional requirements delineated by the Court in Kent. Nonetheless, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice or otherwise affected the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). With regard to the veteran's claim to reopen a previously denied claim for service connection for PTSD, the Board realizes that the veteran was never provided a letter indicating that new and material evidence was first required to reopen his claim or advise him of the evidence that would be necessary to substantiate the element required to establish service connection that was found insufficient in the previous denial. However, since the subsequent decision finds that new and material evidence has been submitted to reopen a claim for service connection for PTSD, further development with regard to VA's duties to notify and assist as to the claim to reopen would serve no useful purpose. In this regard, as the determination to reopen this appeal constitutes a full grant of that portion of the claim, any error in notice timing and content is harmless. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Finally, the veteran has been provided with several opportunities to submit evidence and argument in support of his claims. Therefore, the Board finds that any defect with respect to timing or content of the VCAA notice requirements for his claims is harmless error in this case. The VA has secured or attempted to secure all relevant documentation to the extent possible. Service medical records, VA medical examination reports and treatment records are of record, as well as private treatment records and were reviewed by both the RO and the Board in connection with the veteran's claims. There remains no issue as to the substantial completeness of the veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). Analysis New and Material Evidence to Reopen The veteran is seeking to reopen his claim of entitlement to service connection for PTSD which was previously denied by the Board in January 1991. Unless the Chairman of the Board orders reconsideration, all decisions of the Board are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. §§ 511(a), 7103(a), 7104(a). Because the record does not reflect that the veteran or a representative, or the Board requested reconsideration of the January 1991 Board decision, that decision is final based on the evidence then of record. Id. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. Because his request was initiated prior to August 29, 2001, the amended version of 38 C.F.R. § 3.156(a) is not for application in this case. Compare 38 C.F.R. § 3.156(a) (2007) with 38 C.F.R. § 3.156(a) (1999 and 2001). For applications filed prior to August 29, 2001, new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Board finds that submitted VA treatment records indicating the veteran was diagnosed with PTSD represents evidence that is new, not cumulative or redundant. This newly submitted evidence is also material because it tends to show that the veteran has a current PTSD diagnosis. In this context, this medical evidence is new and is not cumulative or redundant. Moreover, as the veteran's claim was originally denied in part, on the basis that there was no evidence that he had a current PTSD diagnosis, the Board now determines that new and material evidence sufficient to reopen the veteran's claim for entitlement to service connection for PTSD has been presented. This evidence must be considered in light of all of the evidence both old and new, in order to fairly decide the merits of the veteran's current claim. For these reasons, the Board determines the medical evidence submitted subsequent to the January 1991 Board decision is "new and material" as contemplated by 38 C.F.R. § 3.156(a), and provides a basis to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108. Having determined that there is new and material evidence to reopen the claim, the Board must proceed to evaluate the merits of the claim. Service connection for PTSD in particular requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg. 32,807-32,808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). The Board has a duty to analyze the credibility and probative value of the evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board finds that the June 2002 and October 2004 VA psychological examination reports are more probative on the question of proper psychiatric diagnosis than the VA treatment records, dating from February 1997 to April 2007, and indicating an initial PTSD diagnosis in May 2000. In this regard, the Board finds that the medical opinions against a PTSD diagnosis are most persuasive as they included a detailed analysis of all of the evidence of record, and offer a rational basis for their conclusions. The VA examination reports were completed with consideration of the veteran's reported stressor history and his past and present social and psychiatric status in all the assessments. The VA examiner conducting the June 2002 and October 2004 examinations specifically noted that the veteran's claims files and medical records had been reviewed. The June 2002 and October 2004 VA evaluation reports also specifically found that the veteran did not experience several symptoms associated with a diagnosis of PTSD and that his symptoms were more likely related to his diagnosed obsessive compulsive disorder. In contrast, a review of the VA treatment records indicating a PTSD diagnosis reveals no evidence that the examiners had access to his service records or that they reviewed earlier treatment records. Likewise, there is no indication that the treating examiners conducted any psychological testing. As such, the Board is free to favor one medical opinion over another when the reasons for doing so are adequately explained. See Evans v. West, 12 Vet. App. 22, 26 (1998); Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 845 (Fed. Cir. 1999) (unpublished decision), cert. denied 120 S.Ct.1251 (2000) (it is not error for the Board to value one medical opinion over another, so long as a rationale basis for doing so is given). As a layman without proper medical training and expertise, the veteran is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a claimed medical condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The Board cannot assign any weight to the veteran's lay assertion of PTSD. Therefore, the Board determines that the preponderance of the evidence is against service connection for PTSD. 38 U.S.C.A. § 5107(b). The appeal is denied. Service Connection for Vertigo The veteran contends that he developed vertigo secondary to his service-connected bilateral hearing loss. Alternatively, a May 1983 private treatment record associates his diagnosed subjective vertigo with his service-connected tinnitus. Finally, several VA treatment records indicate that the veteran complained of dizziness associated with an in-service head injury. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although the veteran claims to have developed vertigo secondary to either his service-connected hearing loss or tinnitus, the Board finds that the preponderance of the evidence is against his claim. While the evidence reveals that he has current vertigo, the preponderance of the competent evidence of record does not etiologically link the veteran's current vertigo to his service or to his service- connected hearing loss or tinnitus. In this regard, the Board acknowledges the May 1983 letter indicating the veteran's treating private physician's opinion that he had vertigo associated with his tinnitus. The Board further acknowledges a December 2001 VA examiner's statement that it was possible that the veteran's long history of vertigo was related to his hearing deficit and tinnitus. However, the examiner also noted that the veteran was on numerous medications which could cause vertigo symptoms and, after further testing was accomplished, opined that the veteran's vertigo was unlikely secondary to his hearing loss or tinnitus in a follow-up January 2002 note. The Board finds the VA examiner's opinions more probative than the private treating physician's, as they are based on a review of his claims files in conjunction with a physical examination and testing, and the examiner provided rationale for his opinions. In contrast, it is clear that the opinion in the May 1983 letter from the veteran's private treating physician was based upon the veteran's reported history regarding his vertigo and tinnitus, and the physician did not indicate whether the veteran's medical records were reviewed and provided no rationale for his opinion. Although the veteran believes his currently diagnosed vertigo is secondary to his service-connected bilateral hearing loss or tinnitus, he is not competent to provide evidence that requires medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). With regard to whether the veteran's vertigo had its initial onset in service or is the result of an in-service head injury, the Board again finds that the preponderance of the evidence is against the claim. In this regard, the Board acknowledges the veteran's in-service complaints of dizziness in November 1963 and April 1965. However, there are no associated diagnoses and the October 1965 medical examination report at the time of his discharge shows that clinical evaluation of the veteran's sinuses, ears, eardrums and eyes was normal. Moreover, an April 1967 VA audiological examination report shows no relevant complaints, findings, treatment or diagnoses for vertigo. Likewise, although November 2000 and June2003 VA treatment records note the veteran's reported history of vertigo or dizziness following a head injury in 1965, there is no contemporary evidence of such head injury in service. The Board finds the service medical records to be more contemporary to the time he alleges he sustained a head injury that caused his current vertigo and are of more probative value than his current recollections, given many years later. Moreover, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Finally, VA treatment records, dated in the mid- to late- 1980's show that the veteran's complaints of dizziness were associated with diagnosed hypertension as early as May 1984 and also associated with medications he took for his diagnosed obsessive compulsive disorder in December 1988. Accordingly, for the reasons noted above, the Board concludes that the preponderance of the evidence is against the claim in this case, and service connection for vertigo must be denied. ORDER Service connection for PTSD is denied. Service connection for vertigo is denied. REMAND With regard to the veteran's claim for an increased evaluation for bilateral hearing loss, the Court, in its recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) s/he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) s/he must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Although the July 2007 notice letter advised the veteran that he needed to submit evidence that his bilateral hearing loss had worsened, it did not advise him of the specific criteria necessary for a higher evaluation. The veteran should be advised of the criteria necessary for entitlement to a higher disability rating for bilateral hearing loss pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100. VA's duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant that takes into account the records of prior medical treatment (the complete claims folder). Green v. Derwinski, 1 Vet. App. 121 (1991); Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). A review of the record reveals that the veteran's most recent VA examination for his bilateral hearing loss was conducted in December 2001, more than 7 years ago. Moreover, a March 2004 VA audiology treatment record indicates that the veteran was given an audiological examination that reflected discrimination levels in each ear that had worsened since the 2001 examination. However, the audiometric results were not associated with the claims file and unavailable to evaluate the veteran's bilateral hearing loss disability. Therefore, the veteran should be afforded a more contemporaneous examination to assess the current severity of his service- connected bilateral hearing loss. Finally, the Board notes that the veteran's most recent VA treatment records are dated in April 2007. There is no evidence that any attempt has been made to secure VA treatment records subsequent to the April 2007 records. Copies of any available VA records subsequent to that time need to be obtained and incorporated in the claims files. It is important to note that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should send a revised notice letter regarding the veteran's claim for an increased disability rating for bilateral hearing loss. In particular, the notice letter should describe the diagnostic criteria necessary to establish a higher evaluation for bilateral hearing loss. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. VA should obtain any VA treatment records, dating from April 2007 to the present, and associate the records with the veteran's claims files. 3. Arrangements should also be made for the veteran to undergo VA examination by an audiologist to determine the nature and extent of any current bilateral hearing loss found to be present. The claims files must be made available to and reviewed by the examiner prior to the examination. A notation to the effect that this record review took place should be included in the examination report. All indicated studies should be performed, to include a full audiological evaluation. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. Thereafter, the RO should readjudicate the issue on appeal. If the issue on appeal remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate 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). ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs