Citation Nr: 1327195 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-07 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970, including service in the Republic of Vietnam from August 1968 to August 1969 and his decorations include the Air Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2009 and January 2010 rating decisions decided by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the July 2009 rating decision the RO denied the Veteran's application to reopen a claim of service connection for bilateral hearing loss and in the January 2010 the RO denied service connection for psychiatric disability, to include MDD and PTSD. The Veteran's claim of entitlement to service connection for a psychiatric disorder, to include MDD and PTSD, was initially characterized as two separate issues of entitlement. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. As such, the Board finds that the Veteran's psychiatric conditions and symptoms are properly characterized as one issue. The issue entitlement to an acquired psychiatric disorder 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. In an April 2008 rating action, the RO denied service connection for bilateral hearing loss. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. 2. The evidence received since the April 2008 rating decision denying Veteran's claim for service connection for bilateral hearing loss is new and raises a reasonable possibility of substantiating the Veteran's claims for service connection. 3. Resolving all doubt, the Veteran's bilateral hearing loss had its onset in service. CONCLUSIONS OF LAW 1. The April 2008 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Resolving doubt in the Veteran's favor, bilateral hearing loss was incurred as a result of service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's claim entitlement to service connection for bilateral hearing loss and grants service connection for the condition. As such, no discussion of VA's duty to notify and assist is necessary. I. Claim to Reopen The Veteran seeks to reopen his previously denied claim of service connection for bilateral hearing loss. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. VA is required to review for its newness and materiality only the evidence submitted by the claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. Initially, the Board notes that the Veteran submitted a claim for service connection for bilateral hearing loss in August 2006. The claim was denied by RO action in April 2008 on the basis that the evidence did not show that a "clear relationship" between the Veteran's current hearing loss disability was not shown. The Veteran was informed of that decision. The Veteran did not file a notice of disagreement with the April 2008 rating decision and no additional evidence pertinent to the issue was physically associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 2008 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The RO received the instant petition to reopen the claim in May 2009. The RO declined to reopen the previously denied claim on the basis that there was no connection between the Veteran's current disorder and service. The Veteran appealed this decision. At the time of the April 2008 RO decision, the evidence of record consisted of a the Veteran's service treatment records, VA outpatient treatment records and a VA examination. Pertinent evidence received since the April 2008 RO rating decision includes a March 2010 written statement from the Veteran regarding the onset of his current bilateral hearing loss. The evidence received is new because it was not previously considered by the RO. As the new evidence submitted is the Veteran's own lay statement regarding the onset of the bilateral hearing loss, the Board notes that for the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In support of the claim to reopen his previously denied claim, the Veteran submitted a lay statement attesting to his continued hearing loss since his discharge from service. This evidence essentially shows this condition as having lasted for many years and thus tends to establish recurrent symptoms since service, an element of the claim not previously addressed by the evidence of record in April 2008. This evidence is new, as it has not been previously submitted, and material, as it tends to show that the Veteran's bilateral hearing loss disorder may be related to his active military service. It provides more information surrounding the etiology of the Veteran's claimed bilateral hearing loss. The evidence raises a reasonable possibility of substantiating the claim. As the additional evidence is both new and material, the claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). II. Service Connection for Bilateral Hearing Loss Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The service treatment records do not show treatment for or complaints of hearing loss. A November 2002 VA outpatient treatment record reveals an audiology assessment. The results of the pure tone air conduction thresholds in the Veteran's right ear were 5, 20, 30, 60 and 60 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. In his left ear, pure tone thresholds were 5, 20, 45, 60 and 60 decibels at the same frequencies. The assessment revealed hearing loss pursuant to 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in April 2008. The Veteran stated that he had trouble watching television and following conversations when he was in a group. The Veteran's pure tone thresholds in his right ear were 15, 20, 35, 60 and 65 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. In his left ear, pure tone thresholds were 15, 25, 45, 60, and 60 decibels at the same frequencies. His speech recognition score was 92 in his right ear and 88 in his left ear. The examiner diagnosed the Veteran with normal to moderately severe bilateral sensorineural hearing loss and mildly reduced speech recognition ability in both ears. The examiner opined that his bilateral hearing loss was not clearly a result of the noise exposure while serving on active military service. The examiner noted the Veteran's noise exposure while in service and stated that it is well documented that noise of high intensity and short duration, such as military-type noise, could cause permanent damage in the inner structures of the ear, that may result in irreversible hearing loss and tinnitus. She stated that the Veteran's exit examination showed bilateral normal hearing loss and that no other audiological test results were available until 32 years after service, so a "clear relationship" was not established. After reviewing the available evidence, the Board finds that service connection for hearing loss is warranted. A current hearing loss disability has been established based on the VA audiological assessment in November 2002. See 38 C.F.R. § 3.385. As the Veteran has stated, he was exposed to in-service noise exposure due service in Vietnam. The Veteran states that he built firebases, bunkers and cleared mines off of roadways in combat areas. He states that he was stationed near the artillery unit which was under constant fire. The only question remaining then is whether the evidence establishes a causal connection between the current disability and in-service noise exposure. The Veteran indicated in his November 2010 written statement that the onset of his hearing loss began in service. The Veteran reported that he began having ear problems and ringing in his ears that has never gone away. A liberal reading of the Veteran's statements in support of his claim establishes a report of continued difficulty with his hearing acuity since service. A showing of a recurrent condition can serve to satisfy the requirement for a nexus between an in-service occurrence and a current hearing loss disability. Here, the Veteran's lay statements are found to be competent and credible. See Layno v. Brown, 6 Vet. App. at 470. The Board has considered the April 2008 VA examiner's opinion regarding the etiology of the hearing loss, but notes that the basis for the examiner's conclusion does not account for the Veteran's competent, credible and probative accounts of declined hearing loss, to include onset and recurrence since separation. See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, although the examiner's opinion does not suggest that the Veteran's confirmed acoustic trauma during military service resulted in a current diagnosis of hearing loss, she noted that it is well documented that noise of high intensity and short duration, such as military-type noise, could cause permanent damage. Therefore, the Board finds that the VA opinion is less probative on the question of causal nexus between the current hearing loss and service. Aside from the medical opinion, the only remaining evidence of a nexus is the Veteran's credible report of ear problems that have lasted since his service in Vietnam. Thus, the Board finds that the required nexus has been established for the current hearing loss disability. The Board finds that the negative VA opinion only serves to place the evidence regarding a nexus between current bilateral hearing loss and service in relative equipoise. Thus, reasonable doubt is resolved in favor of the Veteran. Accordingly, service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss, is reopened. Service connection for bilateral hearing loss is granted. REMAND As explained in the Introduction, the Veteran seeks service connection for a psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service treatment records are silent for any complaints or treatment for a psychiatric condition in service. Post-service VA outpatient treatment records reveal a diagnosis of MDD, single episode, moderate to severe in March 2007. December 2008 VA outpatient treatment records show that the Veteran complained of insomnia, being sad, irritable and worried. He complained of low motivation and low interest in things he liked to do. He denied suicidal or homicidal ideations. In a written statement received at the RO in March 2010, the Veteran noted that he was involved in a ground attack which resulted in 150 causalities. The Veteran observed the soldiers who were "cut in half" by friendly fire and grenades. He also stated that he witnessed an explosive detonate during a demonstration which killed a soldier. The Veteran stated that after discharge, he attempted to forget the stressors. He stated that his wife helped him work through his "problems" but, over 40 years, they have gotten worse. He also noted that he suffered from insomnia and panic attacks. At a December 2010 VA PTSD examination, the Veteran was diagnosed with Depressive Disorder not otherwise specified. The examiner stated that the Veteran fulfills the stressor criterion for PTSD, but does not fulfill the persistent avoidance of stimuli associated with the trauma. Notwithstanding the Veteran's Vietnam service, the examiner noted that the fear of hostile military or terrorist activity was not supported by the evaluation. In a December 2011 medical opinion, the examiner stated that she reviewed the claims file, and opined that the Veteran's current depressive disorder was less likely than not caused by or a result of his military service. The rationale indicated that there was no evidence of psychiatric complaints prior to service or within one year or discharge. The examiner noted that the Veteran did not seek treatment until 2007. The examiner also noted the Veteran had been diagnosed with Major Depressive Disorder in June 2009 and in October 2011, indicating the stressors as "familiar stressors." The Board finds that VA examination and medical opinion are inadequate for rating purposes. The examiner opined that the Veteran's psychiatric disorder was not caused by an in-service injury or event, citing the absence of post-service treatment, which does not take into account the Veteran's competent report of recurrent symptoms, such as panic attacks, nightmares, depression, and anxiety since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Although relevant medical history or the lack thereof, is a factor to be considered, the examiner must also consider and address the Veteran's account of in-service trauma and post-service symptomatology. See Davidson. As the December 2010 VA examination report and December 2011 medical opinion do not reflect adequate consideration of pertinent evidence, the Board is without discretion and must remand the Veteran's claims for an adequate VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, in a December 2009 written statement, the Veteran indicated that he was receiving Social Security Administration (SSA) benefits. The evidence of record reveals that an inquiry was made regarding the Veteran's benefits, but it does not reflect that the benefits letter and records have been associated with the claims folder. Under the law, VA must attempt to obtain these records. 38 U.S.C.A. § 5103A (West 2002);38 C.F.R. § 3.159(c); see also Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim). Also, VA treatment records dating up to March 2010 are contained in the claims file. Relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the claims file contains a statement dated September 2011 written in Spanish. On remand, the RO should translate this written statement from Spanish to English. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the Veteran's in-service and post-service psychiatric symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Attempt to obtain from the SSA the records pertinent to the Veteran's claim for SSA disability benefits, to include medical records and disability determinations. Additionally, any records obtained or provided in CD-ROM/digital format must be printed and associated with the claims file. All efforts to obtain the records should be documented, a negative response should be requested if no records are available. In addition, obtain relevant VA treatment records dating since March 2010 from the VA Medical Center in San Juan, Puerto Rico. If no relevant records exist, the claims file should be annotated to reflect such. 3. Then schedule the Veteran for a VA psychiatric examination to determine the nature, onset and etiology of any psychiatric disability found to be present. The claims folder should be made available to and reviewed by the examiner, who should record the full history of the disorder, including the Veteran's report of his symptoms. All necessary tests should be conducted. Thereafter, the examiner must opine as to whether it is at least as likely as not that the Veteran any psychiatric disability found to be present is related to or had its onset in service. A diagnosis of PTSD must be ruled in or excluded. The examination report should reflect consideration and analysis of all evidence of record, medical and lay, to specifically include the Veteran's September 2011 statement. All findings and conclusions should be supported by a complete rationale and should be set forth in a legible report. 5. After completion of the above development, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs