Citation Nr: 1124437 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 10-31 570A ) 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, to include major depression, schizophrenia, and posttraumatic stress disorder (PTSD), to include as superimposed on a personality disorder. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1979 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issues of entitlement to service connection for an acquired psychiatric disorder, bilateral hearing loss, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Evidence received since the last final decisions of record, which denied service connection for PTSD/depression/an acquired psychiatric disability and bilateral hearing loss, relates specifically to unestablished facts necessary to substantiate the claims; it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. New and material having been received, the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. New and material having been received, the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2010). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2010). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disability and bilateral hearing loss. The claims on the merits require additional development, which is addressed in the remand below. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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). Legal Criteria-Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis-New and Material Evidence The Veteran in this case has been previously denied service connection for an acquired psychiatric disorder and for bilateral hearing loss in rating decisions by the RO which were not appealed to the Board (substantive appeals were never received). In January 2008, the Veteran submitted his current claims, alleging that new and material evidence exists to reopen. It is noted that the Veteran's service treatment records are not available for review. VA has attempted to locate these records; however, after an exhaustive search, it is apparent that the service department, via the National Personnel Records Center (NPRC), does not have them in their possession. Although this case is not "fire-related," it must be treated as analogous to cases affected by the 1973 fire at the NPRC. That is, where the service treatment records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In the current case, the Board notes that the previous final denials, with regard to the claimed psychiatric condition, focused on there being no diagnosis of PTSD, no record of stressors capable to support an in-service etiology of the claimed PTSD, and no evidence of a nexus between diagnosed major depression and service. Recent jurisprudence from the U.S. Court of Veterans Appeals (Court) has stated that in claims for service connection, it is the disability picture represented by symptoms that are the focus of a Veteran's claim (as opposed to any one specific diagnosis). See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, in developing the claim, VA adjudicators must focus on whether the evidence supports a finding that any psychiatric disability (or disabilities) has causal origin in service. In this regard, the Board notes that in connection with his claim to reopen, the Veteran submitted a statement in which he alleged experiencing personal assaults while serving at Ft. Ord, California, and Ft. Sill, Oklahoma. In addition to this allegation, the Veteran submitted records showing a diagnosis of schizophrenia. The statements of the Veteran regarding a personal assault are new, in that he did not forward these allegations prior to the previous and final decisions of record. The diagnosis of schizophrenia is also new, in that the Veteran's disability picture did not include this diagnosis until the submission of the claim to reopen. The allegations of a personal assault are material, in that they relate to an unestablished fact necessary for the underlying claim to be successful and that, at least potentially, they raise the possibility of substantiating that claim. The diagnosis of schizophrenia is also material, as this unique psychiatric manifestation (and its possible relationship to service) was not considered in the previous final decisions of record. Such an additional psychiatric manifestation, and the potential relationship to service, is something that raises a reasonable possibility of substantiating the underlying claim. The Board is satisfied that new and material evidence has been submitted. The Veteran was denied service connection for hearing loss in a July 2003 rating decision on the basis of there being no evidence of an in-service etiology for hearing loss. The Veteran had been treated for hearing loss in the time proximate to that initial claim; however, he did not raise any theory or posit any evidence showing that the current hearing loss, then noted to be in the right ear, had a causal origin in service. He did not appeal the decision. In filing his petition to reopen, the Veteran submitted additional VA treatment records which were not of record at the time of the last RO decision. Notably, the Veteran submitted evidence of bilateral hearing loss, chronic otitis media, and a history of tympanoplasty surgery performed in December 2007. As noted, in connection with his psychiatric disability, the Veteran stated that he had served and undergone training at Ft. Sill, Oklahoma, before being assigned to Ft. Ord, California. Ft. Sill has, for many years, been the home of the U.S. Army's Field Artillery School. The Veteran's service personnel files are not of record; however, the allegation of service at this post does, at least potentially, raise the possibility of exposure to acoustic trauma while on active duty. This is furthered by the post-service need for surgery in the tympanic membrane, which is, at least potentially, suggestive of an acoustic injury to that anatomical structure. Thus, the post-service ear treatment and statement regarding Ft. Sill service are both new and material to the record, and as such, warrant a reopening of the claim of entitlement to service connection for bilateral hearing loss. See 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the claim of service connection for an acquired psychiatric disability is reopened; to that extent only, the claim is granted. New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened; to that extent only, the claim is granted. REMAND The above decision reopens claims for entitlement to service connection for an acquired psychiatric disorder and for bilateral hearing loss. Additionally, the Veteran has raised a claim for entitlement to service connection for tinnitus. Further development is required before these claims can be adjudicated. In a clinical note dated in December 2007, the Veteran was noted to be a recipient of benefits from the Social Security Administration (SSA). Specifically, it was noted that the Veteran was found to be not competent to handle his financial payment from that agency, and that a payee had been established for him. The Board observes that when VA has actual notice that the appellant is receiving disability benefits from the Social Security Administration, and such information is arguably relevant, the duty to assist requires VA to obtain a copy of the decision and any supporting medical records upon which the award was based. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In this case, the information provided to VA indicates that SSA benefits have been awarded, and thus before any final adjudication can be made, these records must be obtained and associated with the claims file. In addition to obtaining SSA records, the Board also notes that the Veteran has identified other private medical treatment for his claimed psychiatric disorder. Specifically, the Veteran noted in July 2009 that he had been treated by Arrowhead Regional Medical Center, Mount San Antonio Hospital, and Loma Linda Behavioral Health Center. These are all private medical facilities in California, and as of yet, they have not been contacted and requested to provide copies of the Veteran's treatment. Thus, in order to ensure the most complete evidentiary record, these hospitals must be contacted and asked to provide copies of any treatment records pertaining to the Veteran. In addition to securing records from SSA and the private health care providers in California, the RO should attempt to secure copies of the Veteran's service personnel records. It does not appear as though such records have been obtained (201 file, etc.), and such documents may potentially help substantiate the claims for service connection. Specifically, the records are important to help determine the Veteran's military occupational specialty (MOS) and the potential interplay the circumstances of his service might have with regard to noise exposure. Moreover, any disciplinary records would be very helpful in determining if any psychiatric manifestations began in service. After securing SSA records, private medical records, and service personnel records, the Veteran should be scheduled for VA examinations with psychiatric and audiology providers. The record does indicate that the Veteran, with his Ft. Sill service (a fact that he, as a layperson, is competent to report) potentially had noise exposure while in active service. Given his statement of this fact, along with a documented post-service need for surgery in the tympanic membrane of the right ear, there is evidence of both current disablement (bilateral hearing loss and tinnitus) and the potential for an in-service etiology. As such, an examination is warranted to determine whether it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus had causal origin in service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as the Veteran received a discharge under honorable conditions, there is a pattern of abnormal behavior which may, at least potentially, be indicative of a psychiatric abnormality on active duty. Thus, the Veteran should be examined to determined if any acquired psychiatric disability, to include such a disorder superimposed on a personality disorder, had causal origins in active service. Id. The Veteran is encouraged to supply any additional evidence that might be in his possession, to include documents from non-official sources ("buddy statements," letters from family, etc.) which might help to substantiate his claims. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. In this regard, with any necessary releases from the Veteran, the SSA, Arrowhead Regional Hospital, Mount San Antonio Hospital, and Loma Linda Behavioral Health Center must be contacted and records of disability determinations and/or treatment must be obtained and associated with the claims file. Additionally, the NPRC is to be contacted and copies of the Veteran's service personnel records should also be obtained and attached. If no records are found after an exhaustive search, an annotation of this fact must be made in the claims file. 2. Schedule the Veteran for VA psychiatric and audiology examinations. In this regard, the respective examiners are asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current psychiatric condition (claimed PTSD, mood disorder/depression, schizophrenia, and/or superimposed personality disorder), and bilateral hearing loss/tinnitus had causal origin in service, to include the receipt of a discharge under honorable conditions and Ft. Sill service and post-service tympanic membrane surgical correction, respectively. A detailed rationale should accompany any conclusion reached in each of the examination reports, and the examiners should note that they reviewed the claims file (including the records obtained pursuant to this remand order). 3. Following the directed development, the RO must conduct a de novo review of the claims for service connection on the merits. Should the claims be denied, issue an appropriate statement of the case to the Veteran and his representative and return the claim to the Board for final adjudication. 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 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. 2010). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs