Citation Nr: 1002902 Decision Date: 01/20/10 Archive Date: 02/01/10 DOCKET NO. 08-03 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD. 5. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, to include a congenital deformity of the lumbar spine, and, if so, whether the claim should be granted. 6. Whether new and material evidence has been received to reopen a claim for service connection for a neck disorder. 7. Whether new and material evidence has been received to reopen a claim for service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from June 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from a decision of April 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, and a decision of February 2008 of the RO in Philadelphia, Pennsylvania. Custody of the case was transferred to the RO in Manchester, New Hampshire. Transcripts of the Veteran's testimony at an October 2007 RO hearing and at a June 2008 hearing before a Decision Review Officer are on file, as is a transcript of his testimony at an October 2009 videoconference before the undersigned Veterans Law Judge. The claims for service connection for bilateral hearing loss, for bilateral tinnitus, and for PTSD as well as the applications to reopen claims for service connection for a neck disorder and for headaches, and de novo adjudication of the claim for service connection for a low back disorder, to include a congenital deformity of the lumbar spine, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not appeal a November 2005 RO decision, of which he was notified that month, denying reopening of a claim for service connection for a low back disorder. 2. Additional evidence received since the unappealed rating action of November 2005, taken together with evidence previously on file relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a low back disorder. CONCLUSIONS OF LAW 1. The Veteran did not appeal a November 2005 RO decision, of which he was notified that month, denying reopening of a claim for service connection for a low back disorder. 2. The additional evidence presented since the rating decision in November 2005 is new and material and the claim of service connection for a low back disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). New and Material Evidence Claim As the application to reopen the claim of service connection for a low back disorder is resolved in the Veteran's favor, further discussion of VCAA compliance is not required. Moreover, any failure of the RO to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006) is nonprejudicial. Further discussion of VCAA compliance is deferred pending remand of the claim for service connection for a low back disorder. Background The Veteran's April 1972 examination for service entrance was negative. A September 26, 1973, clinical record noted that the Veteran had been in a military vehicular accident. He complained of pain of the right thigh and chest pain in the region of the sternum. On physical examination there was a slight contusion of the medial aspect of the right thigh. There was pain on palpation of the chest. No visible deformities were noted. There was no pain upon inhalation. X-rays were within normal limits. The impression was a contusion of the medial aspect of the right thigh and a contusion of the chest, questionable due to impact from the steering wheel. The next day he complained of a cold, back pain, and general body aches, including the right hip and leg. On examination there was slight generalized tenderness of the back but no tenderness of the chest. The impression was multiple contusions. It was also noted that he was upset over being made to pay for damage to the truck (involved in the vehicular accident). He had a nose bleed. The impression was tension and a nose bleed. The Veteran was afforded a full psychiatric evaluation in October 1973 because of expressed homicidal and suicidal thoughts. There was a current investigation and the Veteran had been told he would have to pay for damage to a vehicle he had overturned a month ago. In January 1974, the Veteran complained of pain in his back, between his shoulders. The impression was a muscle spasm. Later that month, he again complained of such pain and on examination he had mild thoracic scoliosis with mild spasm of the right paravertebral muscles but no tenderness. An X-ray revealed no curvature but there was a questionable compression fracture of T4. The impression was thoracic spine pain. A February 4, 1974, clinical note reflects that the Veteran again complained of upper back pain in the mid-line. On examination he had tenderness over multiple spinous processes and pain of left lateral bending but otherwise full range of motion. There was no muscle spasm. The impression was upper back pain of obscure etiology. He was referred for an orthopedic evaluation, noting that he had no definite history of trauma. In April 1974 it was noted that the Veteran had had chest and back pains for a long period of time, of about two years. He complained of pain from the middle of the chest, ranging around to the thoracic area of the back and stated he experienced some dizziness with occasional blurred vision. On orthopedic evaluation in April 1974 the Veteran had full range of motion of the low back. There was no sensory deficit. X-rays revealed asymmetry of L5 with asymmetry of L4-5 and L5-S1. The impression was congenital deficits of the lumbar spine. In April 1974 it was indicated that the Veteran was to be "boarded out" for low back pain. The impression was chronic low back strain. He was given Parafon Forte and limited duty for 2 weeks. A May 1974 report of a Medical Board reflects that the Veteran was to be discharged from service due to congenital abnormalities of the lumbosacral spine which had existed prior to service entrance and which were not aggravated by service, and due to a moderate emotionally unstable personality which had existed prior to service entrance and which was not aggravated by service. The full report indicates that approximately three months ago the Veteran reported that he began to note low back pain, which over time radiated up his back to the area between the scapulae and involve his right arm. There was no history of a significant injury as an initiating cause. His psychiatric diagnosis of a personality disorder was noted. His past history, family history, and review of systems were significant only in establishing a basis for his personality disorder. X-rays in April 1974 of the thoracic and lumbosacral spine were within normal limits except for the lower lumbar area where there was marked asymmetry of the transverse processes of the L5 vertebra and the L5-S1 and L4, L5 articulations which were quite asymmetrical. The Veteran appealed a September 1974 rating decision which denied service connection for a congenital abnormality of the lumbosacral spine by filing a notice of disagreement (NOD) in February 1995 but after a Statement of the Case (SOC) was issued in March 1975 he never perfected the appeal by filing a Substantive Appeal. In January 1994 the Veteran applied to reopen the claim for service connection for a low back disorder. Records from a Lowell, Massachusetts, VA outpatient treatment facility from July 1992 to March 1994 are on file. These show that he was seen in March 1993 for degenerative joint disease, osteoarthritis, of multiple joints. X-rays revealed asymmetric joint space narrowing, bony overgrowth, and osteophyte formation in his vertebral column. He had fallen from a 10 to 12 foot height three (3) years ago and while he had not sought treatment, he had stayed off of his legs for two weeks. On January 10, 1994, he complained of having had low back pain for two (2) years but he also reported having injured his back during service as well as having abused alcohol and drugs after service. The Veteran did not appeal a May 1994 rating decision, of which he was notified and provided a copy of, that month which denied reopening of the claim for service connection for a low back disorder and also denied the claims for service connection for a neck disorder and for headaches. In April 2005 the Veteran applied to reopen the claim for service connection for a low back disorder. Records from a Lowell, Massachusetts, VA outpatient treatment facility in June 2005 are on file. These show that the Veteran related having had neck pain for years and recently pain and numbness down the right upper extremity. He related the neck pain to an inservice vehicular accident and denied any recent fall or trauma. He also complained of multiple musculoskeletal and joint pains throughout his body. The Veteran did not appeal a November 2005 rating decision, of which he was notified that month, which denied reopening of a claim for service connection for a low back disorder and which also denied service connection for headaches and a neck disorder. In a typed letter of July 2007 the Veteran described his inservice vehicular accident. Private clinical records of 1999 to 2001 were received in August 2007 and reflect that in March 1999 the Veteran complained of having mid-back pain, off and on, for 3 to 4 months and he reported having lifted heavy weights at his old employment. X-rays in March 1999 revealed old thoracic compression fractures. In October 2001 his radicular type symptoms in the lower extremities suggested lumbosacral disc pathology. VA outpatient treatment records of 2006 and 2007 reflect that in December 2006 the Veteran reported having had chronic cervical and low back pain since the 1970s after an inservice injury. He related a similar history in September 2007. The Veteran provided testimony at an October 2007 RO hearing concerning his claims for service connection for bilateral hearing loss and service connection for bilateral tinnitus. He testified that during service he drove trucks and heavy equipment. Pages 1 and 2 of that transcript. Also, he was in the military police during part of his military service and was involved in a vehicular accident in which he sustained a head injury. Page 2. However, in his postservice employment he was given protection from noise exposure. Page 3. He was first diagnosed with a hearing loss in 1994. Page 3. This occurred when he had to have a pre-employment examination in conjunction with Foster Wheeler Construction a job at a hazardous waste site when he was sent to a clinic in "Billerica," Massachusetts. Pages 3 and 4. He now had constant bilateral tinnitus which caused headaches. He had never asked any examiner whether his hearing loss or tinnitus might be related to inservice noise exposure or inservice head trauma. Page 5. He had been receiving Social Security disability benefits due to pinched spinal nerves since 2005. Page 5. He had never been injured in his postservice employment. Page 6. The Veteran further testified that he had been hospitalized following his inservice vehicular accident. He had been at the hospital for only 2 or 3 hours and was then released. It was requested that the Veteran be afforded a VA examination for a medical opinion. Page 6. A November 2007 statement from Dr. M. T-J stated that the Veteran had been followed in a neurology clinic for chronic neck and back pain. His service medical records were reviewed and it was noted that he had worsening of a pre- existing back injury following a military vehicle accident in 1973. Service medical records reviewed of September 26, 1973, indicated that he had suffered a contusion and a concussion to the chest in this accident; and he complained of back pain on September 27, 1973. An April 11, 1974, a clinical note indicated that he had long-standing chest and back pain following this motor vehicle accident. The Veteran reported that his accident was a roll-over accident. It was more likely than not that the Veteran aggravated his underlying condition following this accident. In a November 2007 statement Dr. H. K. stated that it was his opinion that the injuries the Veteran suffered in a roll-over accident in 1973 had led to chronic pain and suffering. At a June 2008 hearing before a Decision Review Officer the Veteran testified that he was in a vehicular accident during service in September 1973 in which he almost died, because he had been covered in gasoline, and in which he hurt his head and his back. When he received treatment after the accident he had complained of tingling in his arms and of having a headache. However, he was released after about 3 hours. He had been told at that time by a physician or an intern that he might have problems 25 to 30 years later. The Veteran further testified that within two weeks to a month after his military discharge he began seeking treatment for headache as well as neck and back problems at the "Lowell VA." He had been placed on anti-depressant medication by VA in about 1975. After the inservice accident his back and neck pain had persisted for the duration of his military service, until he was discharged about 6 months after the accident. He had treated his pain himself by taking aspirin. He received his current VA treatment at the "Lowell VA." In the past he had also been treated at VA facilities in Manchester and at the Jamaica Plain and West Roxbury VA facilities. A VA physician, a neurologist, in Boston had told the Veteran that his symptoms might be related to his inservice vehicular accident. That VA physician had treated him for neck and back pain. He still went to the VA facility in Jamaica plain to see a rheumatologist. He took aspirin for his headaches. The VA neurologist had also treated him for headaches. He had headaches almost every day. He had not been in any postservice vehicular accident. The Veteran again stated that he had been receiving VA treatment beginning shortly after his service discharge. He had not been informed by VA treating personnel of his psychiatric diagnosis. He now had tingling in his arms and fingers due to neck pathology. The Veteran's service representative request VA medical examinations for opinions as to the claims for service connection for PTSD, a low back disorder, a neck disorder, and headaches. On VA spinal examination in September 2008 the Veteran reported having had back pain since discharge from active service. His neck pain had started a few years ago and he believed that this was also due to his inservice vehicular accident. After a detailed physical examination, the diagnosis was chronic cervical spine strain with osteoarthritis; and a lumbosacral strain with osteoarthritis and congenital asymmetry of the transverse process of L4 to S1. The examiner opined that the Veteran's current low back and neck disorders were less likely as not caused by or a result of a vehicular accident that occurred while driving a military vehicle. The Veteran's extensive military treatment records had been reviewed and it was observed that the note of September 23, 1973, the day of the accident, only noted a slight contusion to the medial aspect of the right thigh and a contusion of the sternum area of the chest, with slight pain. The original service treatment records did not indicate anything more than slight injuries from the accident. On February 4, 1974, he complained of upper back pain and the diagnosis was upper back pain of obscure etiology. At that time, there was no mention of any possible relationship to the vehicular accident. Of particular interest was an April 11, 1974, clinical note that he had chest and back pain which dated back as long as two years [antedating the accident]. There was no evidence in the medical records that this pre-existing back pain was any worse after the accident that it was before the accident. X- rays at this time were essentially normal except for his congenital abnormality. The examiner also noted a February 3, 1975, appeal of his denial of a claim for service connection for back pain, in which he made no mention of a vehicular accident as being the cause of or worsening his back pain. Then, the record was silent for almost 20 years. In 1994, he sought treatment for back pain, with a two year history, which would place the beginning of his current back pain in the approximate time frame of his fall from a height of 12 feet, as related in a March 30, 1994, clinical note. Then, on March 11, 1999, it was reported that X-rays showed multiple old compression fractures of the upper thoracic region. At the time of the March 1999 visit, the Veteran did not relate this discovery to an inservice vehicular accident but rather believed this was related to his having lifted heavy weights as required in his old employment. The examiner also commented that it should be noted that there were links between his heavy smoking, his diagnosis of severe osteoporosis, his clinically diagnosed low levels of Vitamin D, his job of lifting heavy weights, and his diagnosis of old compression fractures. His current back problems seemed to be related to his employment in heavy construction, lifting heavy weights, and his fall from 12 feet in the early 1990s. It was also to be noted that he had severe osteoporosis, which would cause back pain and would not be caused from an accident. The osteoporosis was most likely linked to his long history of heavy tobacco use combined with his clinically low levels of Vitamin D. The examiner also commented that he had noted the letters of November 2007 from private physicians but saw nothing to link the Veteran's current problems to the remote vehicular accident. The examiner again stated that it was less likely as not that the Veteran's current low back and neck conditions were related to the vehicular accident over 35 years ago. At the videoconference of October 2009 the presiding Veterans Law Judge noted that there was a question as to the timeliness of the Substantive Appeal with regard to the claims for service connection for bilateral hearing loss and bilateral tinnitus. The notice of disagreement (NOD) was received in April 2007 to the rating decision that month denying those claims but after a statement of the case was issued in November 2007, the VA Form 9, Substantive Appeal was not received until November 25, 2008. However, the presiding Veterans Law Judge applied the principle of the holding in Percy v. Shinseki, 23 Vet. App. 37 (2009) that the filing of a timely Substantive Appeal had been waived, so that the Board had jurisdiction to adjudicate those claims. Pages 3 and 4 of that transcript. The Veteran testified that he had been exposed to loud noise n a daily basis during his 10 months of work as a vehicle operator during service. Page 5. This was without wearing ear protection. He had first noticed his hearing loss after service but had not sought treatment in the immediate postservice years. After service he had not been exposed to noise in his postservice occupations, including as a mechanical assembler, nor in his leisure activities. Page 6. While he had been diagnosed with a hearing loss, no physician had told him that his hearing loss was related to his military service. Also, it seemed as if he had had tinnitus forever. It was constant in nature. He was not sure when he had first been diagnosed with tinnitus and no physician had told him that it was related to his military service. Page 7. As to the claim for service connection for PTSD, the Veteran testified that he was in a vehicular accident he hit a cow, causing his vehicle to roll over at 50 m.p.h. into a ditch. After he crawled out of the vehicle it took about 15 minute before he completely regained his senses. Pages 8 and 9. He now often relived that accident, on a weekly basis. He had first received treatment for PTSD in 1974 at the Lowell VA clinic and he believed that he had been diagnosed with PTSD at that time. He was currently being treated for PTSD. Page 10. He was now being treated for PTSD at a VA facility in Manchester. He had not received private psychiatric treatment. He had not been told by a physician that his PTSD was related to his inservice vehicular accident. Page 11. At the time of the accident, he had had gasoline all over him and, because the battery was sparking, he had been afraid that he would catch on fire, but he had not. Page 18. As to his low back condition, the Veteran testified that after his inservice vehicular accident another patrolman took him to a hospital where he was diagnosed with a back condition but he was told he had been born with the condition. However, the Veteran disagreed with this because no such back condition was detected on his examination for entrance into active service and if it had existed at that time he would not have been accepted into service. Also, prior to the accident he had not had any problems with his back. He was eventually received an early released from service because of his back condition. Page 9. He had first received treatment for his low back in 1974. He still received treatment for his low back, at a VA facility in Manchester. Page 12. He also had a sensation of pins and needles in his legs and feet. He had not worked in 5 years because of his back condition. Page 13. He had not been told by a physician that his current back condition was related to his military service. Page 14. As to his claimed neck disorder, the Veteran testified that the inservice vehicular accident had caused a neck injury, for which he was first treated in 1974. He now received treatment for it. Page 14. This treatment was through VA facilities at Jamaica Plains and at Lowell, Massachusetts. For a while he had worn a neck brace. Page 15. He had not been told by a physician that his current neck condition was related to his military service. Page 16. As to his claim for service connection for headache, the Veteran testified that he had had chronic headaches since his inservice vehicular accident. He had first sought treatment for headaches in 1974 at the VA facility in Lowell, Massachusetts, and continued to receive treatment. Page 16. He had not been told by a physician that his current headaches were related to his military service. Page 17. The Veteran did not recall the exact date of the inservice vehicular accident but it had occurred sometime in either 1973 or 1974. Pages 18 and 19. The Veteran's service representative requested VA examinations as to all disabilities which were currently on appeal. Page 19. Reopening An unappealed rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c). New and material evidence is required to reopen a previously denied claim. 38 U.S.C.A. § 5108. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The ultimate weight to be accorded evidence is a question of fact that must be determined after the claim is reopened and based on all of the evidence on file. Id. at 513. The application to reopen the claim of service connection for a low back disorder was received at the RO in June 2007. As to applications to reopen a previously denied claim received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 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). Analysis Reopening of the claim for service connection for a low back disorder was denied in November 2005. The additional evidence includes two statements from private physicians that support the Veteran's claim that he now has current low back disability due to an inservice injury sustained in a vehicular accident. Thus, the additional evidence is new and material because it relates to the unestablished fact necessary to substantiate the claim, i.e., a nexus between an inservice injury and current disability, and so which raises a reasonable possibility of substantiating the claim. Additionally, the Board notes that the RO scheduled the Veteran for a VA spinal examination to evaluation the etiology of his low back disorder. That opinion was unfavorable. Nonetheless, the Board notes that in Falzone v. Brown, 8 Vet. App. 398, 404 (1995) (where the issue was aggravation of pes planus) the Court stated that, where there was an application to reopen a claim, because the Board had remanded the case for an examination to determine the nature and severity of the claimed condition, the examination would not have been necessary unless the claim was to be adjudicated on the merits. The Court held that in rendering such assistance (i.e., obtaining an examination before reopening) the Board performed a "de facto reopening" of the claim. Falzone, at 404. The Board further notes that a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. Generally see 38 C.F.R. § 3.159(c)(4)(iii). The RO denied the application to reopen but only after considering the negative VA medical opinion which was obtained after submission of the two favorable medical opinions. Moreover, the RO weighed these medical opinions in denying reopening but this is not permissible in the reopening context. Rather, the weighing of the credibility of the evidence must take place only after reopening and upon de novo adjudication. As the evidence is new and material, the claim for service connection for a low back disorder is reopened. However, further adjudication of the claim on the merits must be deferred pending evidentiary development. ORDER As new and material evidence has been presented, the claim of service connection for a low back disorder is reopened, and to this extent only the appeal is granted. REMAND Records of the Veteran's award of Social Security disability benefits should be obtained in light of evidence that these benefits were predicated, at least in part, upon the Veteran's alleged low back disability. Generally see Golz v. Shinseki, No. 2009-7039, slip op. (Fed. Cir. Jan. 4, 2010), ___ F.3d ____ , 2010 WL 6160 (C.A. Fed.). Based on the Veteran's hearing testimony, it is clear that he alleges that his hearing loss and tinnitus are due to either inservice acoustic trauma or head trauma, or both, and that he had no postservice noise exposure. He also attributes his alleged neck disability and headaches to the inservice vehicular accident and has also attributed his headaches to the neck disability and to his tinnitus. His hearing testimony also indicates that there may be outstanding private clinical records as well as VA clinical records in the immediate postservice years. However, the only VA treatment records on file do not antedate 1992. On VA audiometric testing in March 2007 the Veteran complained of bilateral tinnitus. That testing revealed threshold levels at 3,000 and 4,000 Hertz of 65 decibels or more in each ear. The diagnosis was that he had a high frequency sensorineural hearing loss. The Veteran has submitted two private medical statements, from Dr. P. P. G. dated in January 1995, reflecting results of an examination in December 1994, and from GMG WorkCare, dated in November, reflecting the results of an examination that month, which reflect that he now has a bilateral high frequency hearing loss which is consistent with noise exposure. If the record shows evidence of inservice acoustic trauma and inservice audiometric results indicate an upward shift in tested thresholds, and if postservice audiometric testing results meet the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the postservice findings to injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran did not appeal a November 2005 rating decision which denied service connection for depression, to include memory problems, and of which he was notified by RO letter that month. Thus, that decision became final. In addressing whether new and material evidence is now required to reopen that claim, the Board notes that under 38 U.S.C.A. § 7104(b) the "factual basis" of a service connection claim is the disease or injury and not merely the symptoms. A newly and properly diagnosed disease or injury cannot be considered the same factual basis as a distinctly different diagnosed disease or injury that was previously denied and, so, must be considered as a separate and distinct claim, even if there is some overlapping of symptoms. A claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently because they rest on distinct factual bases. Boggs v. Peake, 520 F.3d 1331, 1336-37 (Fed. Cir. 2008) (sensorineural hearing loss was a distinctly different diagnosis, and thus a new claim, from a previously denied claim of service connection for conductive hearing loss); cf. Ephraim v. Brown, 82 F.3d 3999 (Fed.Cir. 1996). Because PTSD is a distinctly different psychiatric disorder, with different criteria for the diagnosis thereof, it must be considered a new claim and, so, new and material evidence is not required for reopening. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the Veteran's service personnel records. Also, the Veteran should be requested to provide as much identifying information as to the date and place of his inservice vehicular accident. The RO should attempt to determine whether any accident report or investigation was conducted concerning the vehicular accident and, if so, those records should also be obtained. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and private, who have treated him for (1) hearing loss, (2) tinnitus, (3) psychiatric symptoms, (4) low back symptoms, (5) neck symptoms, and (6) headaches since his discharge from active service in May 1974. Also obtain from the Veteran as much identifying information as possible concerning his pre- employment examination in 1994 which allegedly revealed a hearing loss. If necessary, this should include contacting his then employer as well as the, as yet, unidentified clinic in Billerica," Massachusetts. This should include attempting to obtain all clinical records from VA facilities in Jamaica Plains; Lowell, Massachusetts; and West Roxbury since the Veteran's discharge from active service in May 1974. The attempts should include, but not be limited to, obtaining records specifically held by any psychiatric clinic at these facilities. After securing any necessary authorizations, the RO should request copies of all indicated records which have not been previously secured and associate them with the claims folder. 3. Contact the SSA and obtain all records from that agency concerning the Veteran's award of disability benefits, including a copy of the decision and any medical records used to make the determination, copies of any hearing transcripts, etc. If the RO learns that the records sought do not exist or that further efforts to obtain them would be futile, this must be specifically indicated in the record. 4. Make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA psychiatric examination to obtain a medical opinion concerning the nature, etiology, and probable time of onset of each acquired psychiatric disorder which he currently has. The VA examiner should indicate whether it is at least as likely as not that any psychiatric disorder currently present is etiologically related to the Veteran's military service. Specific attention should be paid to distinguishing between any signs and symptoms of a personality disorder or any other developmental disorder from those of any currently present acquired psychiatric disorder that may exists. A medical opinion also is needed to either confirm or rule out a diagnosis of PTSD. If the Veteran has PTSD, the VA examiner must indicate whether it is due to a verified stressor in service. If so, specify the stressor. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. Send the claims folders to the examiner for a review of the Veteran's pertinent medical history, to facilitate making these determinations. The rationale for all opinions expressed should be discussed. 5. Schedule the Veteran for a VA audiology examination to determine if his hearing loss or tinnitus, or both, are at least as likely as not related to his history of noise exposure during active service or to his inservice vehicular accident. The claims folders must be made available to the examiner for review. In formulating an opinion, the examiner is asked to comment of the clinical significance of when any hearing loss or tinnitus was first documented and any progression of hearing loss or tinnitus, if any. The examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility, rather it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If no opinion can be rendered without resort to speculation please so state. 5. Then readjudicate the claims in light of the additional evidence obtained. If the applications to reopen the claims for service connection for a neck disorder or for headaches are reopened, the RO should consider the propriety of conducting VA nexus examinations with respect to such claimed disabilities. In adjudicating the claim for service connection for a low back disorder, to include a congenital deformity of the lumbar spine, the RO should specifically determine whether there is clear and unmistakable evidence to rebut the presumption of soundness and, if so, whether any pre-existing low back disability was aggravated during service. 6. If the benefits sought are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the case to the Board for further appellate consideration. 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. 2009). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs