Citation Nr: 1304455 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 12-27 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability. 3. Entitlement to service connection for a psychiatric disability currently claimed to be PTSD, on a de novo basis. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from January 1994 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the St. Petersburg, Florida, regional office (RO) of the Department of Veterans Affairs (VA). The claim for service connection for a psychiatric disability arises from the Veteran's June 2010 claim for service connection for PTSD. The June 2011 rating decision denied this claim without consideration as to whether service connection was warranted for any other psychiatric disability. The United States Court of Appeals for Veterans Claims (Court) has held; however, that a claim for service connection for PTSD, is actually a claim for service connection for a disability manifested by psychiatric symptoms; however diagnosed, and therefore, encompasses all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran's current claim; therefore, encompasses all diagnosed psychiatric disabilities. The record shows; however, that the service connection for depression was denied in an April 2008 rating decision, this decision was in response to a claim for service connection for a "mental condition." The Board will therefore consider whether that decision became final and, if so, whether new and material evidence has been received to reopen that claim. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a psychiatric disability currently claimed to be PTSD on a de novo basis 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. Current tinnitus is not related to a disease or injury in active service. 3. Entitlement to service connection for depression was denied in an April 2008 rating decision on the basis that there was no current diagnosis; the Veteran did not appeal this decision and new and material evidence was not received within one year of the decision. 4. Evidence received since April 2008 includes diagnoses of a depressive disorder. CONCLUSIONS OF LAW 1. Tinnitus was not incurred due to active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. The April 2008 rating decision that denied entitlement to service connection for depression is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2012). 3. The Veteran has submitted new and material evidence for his claim for service connection for a psychiatric disability, and it is reopened. 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, § 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. § 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Because the Board is reopening the Veteran's claim for service connection for a psychiatric disability, there is no need for further assistance or notice to aid him in substantiating this element of his appeal. The Court has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Veteran was provided with a letter in July 2010 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. Although this letter did not include notification as to what is required to reopen a previously denied claim on the basis of new and material evidence, this aspect of the claim will be granted, and any failure in the duty to notify is harmless error. The duty to notify has; thus been met. The Board further concludes that the duty to assist has also been met. The Veteran's service and VA treatment records have been obtained. The Veteran has declined his right to a hearing. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. The Veteran has argued that the VA examiner's opinion as to tinnitus is inadequate, because she stated that she could not provide an opinion without resort to speculation. A review of the opinion shows, that the examiner in fact provided a definitive opinion and made no reference to the need for speculation. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board recognizes that a lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). However, the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Tinnitus The Veteran contends that he has developed tinnitus as a result of acoustic trauma sustained while serving as a machine gunner. The Veteran has stated that he experienced ringing of the ears during service and was told that it would stop, but that it has continued since discharge. The service treatment records are negative for a complaint, treatment or diagnosis of tinnitus. They note that the Veteran was issued hearing protection in December 1994. The January 1998 discharge examination found that the Veteran's hearing was normal. The Veteran denied a history of hearing loss and ear, nose, or throat trouble on a report of medical history he completed at that time. The Veteran did not mention hearing loss or tinnitus in his original claim for service connection received in October 2007. He mentioned tinnitus in a supplemental claim received in June 2010. In July 2010, he reported that tinnitus had been present ever since his service as a machine gunner. The post service medical records are negative for complaints of tinnitus until many years after discharge from service. The Veteran was afforded a VA audiology examination in October 2010. He reported that he currently had constant tinnitus. He told the examiner that this had begun two or three years ago. Following the examination, the diagnoses were clinically normal hearing in the right ear, hearing loss that was not disabling by the standards of 38 C.F.R. § 3.385 (2012) in the left ear, and bilateral subjective tinnitus. The examiner noted that acoustic trauma during service was conceded as a result of the Veteran's duties as a machine gunner. However, he opined that the Veteran's claimed tinnitus was not caused by or the result of his in-service noise exposure. The rationale was that there was no military service-related noise-induced hearing pathology for which tinnitus could be medically linked. Furthermore, there was no documentation of any complaint of tinnitus in the service treatment records. The examiner conceded that temporary hearing shifts could have occurred during service, but the current findings were not consistent with noise-induced etiology bilaterally. Finally, the Veteran was noted to have other conditions such as hypertension, diabetes mellitus, and the use of non-steroidal medications that may be associated with tinnitus. The Board notes that the Veteran is not service connected for hypertension or diabetes mellitus. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus. The October 2010 VA examination includes a diagnosis of subjective tinnitus. Furthermore, it is conceded that the Veteran was exposed to acoustic trauma during service. However, the service treatment records are negative for complaints or a diagnosis of tinnitus, and there is no evidence of any tinnitus complaints until the current claim. The Veteran is competent to report that he began to experience tinnitus during service and that he has continued to experience tinnitus since service. His current contentions to this effect, are however, contradicted by the medical history he completed upon discharge from service and by the history of tinnitus for two or three years that he reported to the October 2010 examiner. In addition while he reported numerous service related disabilities in his initial claim for benefits in 2007, he omitted hearing loss or tinnitus. Given his contradictory reports, the Board finds his reports of continuity of symptomatology to lack credibility. Therefore, the Veteran's contentions are not sufficient to establish continuity of symptomatology between the acoustic trauma he sustained during service and his current complaints. There is no other evidence linking current tinnitus to service. The October 2010 VA examiner also opined that the Veteran's current reports of tinnitus were unrelated to active service. The rationale for this opinion was not only the absence of reports of tinnitus in the service treatment records, but the absence of any hearing loss to which the tinnitus could be linked. Although the examiner did not discuss the Veteran's reports of continuity, the opinion is adequate, because those reports are not deemed credible. Therefore, as there is no competent and credible evidence linking current tinnitus to service, the weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b). New and Material As previously noted, entitlement to service connection for depression was denied in an April 2008 rating decision. The Veteran was notified of this decision in an April 2008 letter, but he did not submit a notice of disagreement in order to initiate an appeal. No additional evidence was received with the year after the decision; hence, there is no basis that new and material evidence prevented the decision from becoming final. Cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). The April 2008 rating decision is therefore final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). A veteran may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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). In this case, the evidence considered by the April 2008 rating decision included a March 2008 VA examination for mental disorders. This examination did not result in a diagnosis of a psychiatric disability. The April 2008 rating decision denied entitlement to service connection on the basis that there was no evidence of a current disability. Evidence received since April 2008 includes VA treatment records that include diagnoses of a major depressive disorder and an anxiety disorder. The Veteran was afforded a VA examination for PTSD in October 2010. Although this examination did not find that the Veteran has PTSD, it did enter a diagnosis of a depressive disorder. The Board finds that the current diagnosis of various psychiatric disabilities contained in the recent VA treatment records and the October 2010 VA examination constitute new and material evidence. It is new in that it contains facts that were not previously considered in April 2008, and it is material in that these facts address the reason for the previous denial; namely the absence of a current diagnosis of a psychiatric disability. As the evidence received since April 2008 is both new and material, the claim is reopened. The issue of entitlement to service connection for a psychiatric disability on a de novo basis will be further addressed below. ORDER Entitlement to service connection for tinnitus is denied. New and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability, currently claimed to be PTSD; to this extent only the appeal is granted. REMAND At the October 2010 VA examination, the examiner opined that the Veteran did not have PTSD that was related to active service. The rationale was that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner did enter a diagnosis of a depressive disorder. However, he failed to express an opinion as to whether or not this disability was related to active service. Once VA undertakes to provide an examination, it has a duty to insure that the examination is adequate, or explain to the claimant why such an examination cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's contentions could be construed as providing competent evidence of symptoms beginning in service; hence an opinion is needed as to whether the currently diagnosed depression is related to service. In addition, at the October 2010, VA examination, the Veteran reported that he had been receiving relevant VA treatment at the Tampa VA Medical Center since May 2010. Records of this treatment are not associated with the claim folder. Records do show that in June 2011, notes from the North Florida/South Georgia VA Health Care System indicated no problems found, but there was an included April 2011, note showing that the Veteran's problem list included a panic disorder with agoraphobia, anxiety and depression. Some of the Veteran's reported PTSD stressors consist of personal assaults. VA has adopted a regulation providing that it will not deny a PTSD claim based on in-service personal assault without first notifying the Veteran 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 submit this type of evidence. 38 C.F.R. § 3.304(f)(5) (2012). He has not yet been sent this specific notice, although the regulatory provisions were incorporated into the statement of the case. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter containing the notice regarding claims for service connection for PTSD based on personal assault as required by 38 C.F.R. § 3.304(f)(5). 2. Obtain all records of the Veteran's VA mental health treatment since May 2010. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that further efforts would be futile, or that the records do not exist. If records cannot be obtained, inform the Veteran of the missing records, of the efforts made to obtain the records and of any further action that will be taken with regard to his claim. 3. Schedule the Veteran for a VA examination to determine whether any psychiatric disability identified since 2010 is the result of a disease or injury in active service. The claims folder, including any relevant records in an electronic format, must be provided to the examiner for use in the study of this case. The examiner should answer the following questions: a) For each psychiatric disability that has been identified since 2010, is it, as likely as not, that this disability began in active service? b) For each such disability, is it as likely as not, that the disability it the result (in whole or part) of an event in service (including the Veteran's reported stressors)? The reasons should be provided for these opinions. The examiner should specifically discuss the July 1997 service treatment records noting complaints of stress and a suicidal gesture and indicate whether or not there is a relationship between those incidents and any of the current diagnoses. The accuracy of the diagnosis of a personality disorder at that time should also be discussed. If the examiner is unable to provide any portion of the requested opinion, reasons for the inability should be provided, and any missing evidence required to express the requested opinions should be identified. 4. If any benefit sought on appeal, remains denied, issue a supplemental statement of the case and return the appeal to the Board, if otherwise in order. The Veteran 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. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs