Citation Nr: 1333426 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-28 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of pneumonia and right pleural effusion. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a history of maxillary sinusitis. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depressive disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from October 1976 to September 1992. This matter comes before the Board of Veterans' (Board) on appeal from an August 2007 rating decision of the Portland, Oregon Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Furthermore, as noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The request to reopen the claim of entitlement to service connection for a history of maxillary sinusitis is granted herein, and the merits of the claim is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An August 1994 rating decision denied the Veteran's original claim for entitlement to service connection for pneumonia and right pleural effusion. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 2. Evidence received since the August 1994 rating decision is cumulative of evidence previously considered and does not raise a reasonable possibility of substantiating the claim of service connection for pneumonia and right pleural effusion. 3. An August 1994 rating decision denied the Veteran's original claim for entitlement to service connection for a history of maxillary sinusitis. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 4. Evidence received since the August 1994 decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for a history of maxillary sinusitis. 5. Resolving all doubt in the Veteran's favor, right ear hearing loss is causally related to noise exposure during active service. 6. Although the Veteran has been diagnosed with service-related acquired psychiatric disorder, to include PTSD and depressive disorder, the occurrence of the alleged in-service stressor, to which his symptoms have been medically linked, was the result of the Veteran's own willful misconduct. CONCLUSIONS OF LAW 1. The August 1994 rating decision denying entitlement to service connection for residuals of pneumonia and right pleural effusion is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Since the August 1994 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of pneumonia and right pleural effusion. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302 (2012). 3. The August 1994 rating decision denying entitlement to service connection for a history of maxillary sinusitis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 4. Since the August 1994 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a history of maxillary sinusitis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The criteria for establishing entitlement to service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385 (2012). 6. Acquired psychiatric disorder to include PTSD and depressive disorder was the result of the Veteran's own willful misconduct and was not incurred in the line of duty. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.1(n), 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an August 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. The August 2006 letter advised the Veteran how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. The RO then adjudicated the claim in an August 2007 rating decision. The Board notes that in claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The August 2006 notice letter complies with the holding of the United States Court of Appeals for Veterans Claims (Court) in Kent. In particular, the letter specifically informed the Veteran of the type of evidence that was lacking in the prior denial and of the type of evidence that was necessary to reopen the claim. The Veteran was advised that the previous denial of his claim for service connection for residuals of pneumonia and right pleural effusion and his claim for service connection for a history of maxillary sinusitis were based on the fact that there was no evidence of a current condition. In addition, the criteria for establishing entitlement to service connection for the claimed disability were set forth in the August 2006 letter. There is no further duty to notify under the VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The VA has obtained copies of the Veteran's service treatment and personnel records, and has reviewed the evidence in the Virtual VA system. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The Veteran's service treatment records and VA medical records are in the file. In addition, there is no indication the Veteran is in receipt of Social Security Administration (SSA) Disability benefits that warranted obtaining additional records. Moreover, the Board finds that any underlying records in connection with the denial of benefits are irrelevant as the central question here is a nexus one which has been addressed by the medical evidence already of record. Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The record indicates that the Veteran was also afforded VA examinations in September 2006, October 2006, November 2009, and June 2012 and the results of which have been included in the claims file for review. These examinations involved review of the claims file and a thorough examination of the Veteran. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. New and Material Evidence In general, RO decisions are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. See 38 C.F.R. § 3.156(a) (2012). To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."' The Veteran's claims were originally denied in an August 1994 rating decision which determined that while the evidence did show treatment for pneumonia during service which resulted in right lung pleural effusion, the evidence did not demonstrate he had residuals of pneumonia and right pleural effusion. The rating decision also determined that while the evidence of record demonstrated he was treated for sinus problems during service in October 1978, a current sinus condition was not present. The Veteran did not appeal the decision. Therefore, the August 1994 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, here, such regulation is inapplicable as no new and material evidence pertaining to the Veteran's claims for service connection for a history of maxillary sinusitis and residuals of pneumonia and right pleural effusion was received prior to the expiration of the appeal period stemming from the August 1994 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). In June 2006, the Veteran submitted a request to reopen his claims. This resulted in the August 2007 rating denial which is the subject of the current appeal. Residuals of pneumonia and right pleural effusion According to the record, since the August 1994 rating decision, the Veteran submitted numerous private and VA treatment records of treatment. Private treatment records from the Umpqua Urgent Care from May 2003 to September 2006 reported the Veteran's chest was clear during this time. In November 2009, the Veteran was afforded a VA respiratory examination where the VA examiner noted that the Veteran's service treatment records revealed he was treated for pneumonia and pleural effusion was hospitalized in August 1986. The separation examination report in June 1992 reported a normal chest exam and the x-ray was normal with no underlying respiratory abnormalities. Upon review of the evidence of record (including the in-service treatment records), the Veteran's lay statements, and a physical examination, the VA examiner opined there was "[n]o evidence of residual effects from pneumonia and pleural effusion experienced in [August] 1986." The Veteran's current respiratory symptoms of recurring episodes of tenderness and soreness with painful breathing on the right chest wall were not caused by or the result of the right -sided pneumonia and pleural effusion experienced during service. Specifically, the VA examiner explained: [Despite the Veteran's current symptoms] I am not able to ascertain any possible respiratory diagnosis for these symptoms. Pneumonia with pleural effusion would not be expected to cause ongoing and recurring topical symptoms such as tenderness and soreness of the chest wall, and there is also no medical explanation for the fact that these symptoms, along with painful breathing on the right side, occur during cold, damp weather. I [do not] doubt that the [V]eteran is experiencing these things, but I cannot ascribe a medical diagnosis to them, nor connect them to the pneumonia and pleural effusion in [August] 1986. While the Board acknowledges that this evidence was not previously of record, it is not "material" to the Veteran's claim as it does not establish that the Veteran has a current diagnosed disability stemming from his military service. Thus, although the November 2009 VA examination report addresses the Veteran's current symptoms, the VA examiner has determined that they are not residuals of the pneumonia and right pleural effusion experienced during service. The new evidence demonstrates that the unestablished fact, the existence of residuals of the pneumonia and right pleural effusion, is not established. Therefore, it does not raise a reasonable possibility of substantiating the claim and, while "new" it is not "material." There is no other evidence that could be considered new and material evidence in this case. In reaching this conclusion, the Board has considered the various statements made by the Veteran. While the Veteran has continually asserted that his current symptoms are the result of his in-service pneumonia and right pleural effusion, the Board observes that these contentions were advanced by the Veteran at the time of his prior denials and were considered by the RO. Accordingly, this information is essentially duplicative of information previously considered and, therefore, does not service to reopen the claim. Review of the claims file fails to reveal any new and material evidence suggesting that the Veteran has a respiratory diagnosis for his current symptomatology. He has not informed VA of any evidence not of record that demonstrates this unestablished fact. As new and material evidence has not been submitted, the claim of entitlement to service connection for left ear hearing loss is not reopened. History of maxillary sinusitis Since the August 1994 rating decision, the Veteran was afforded a VA examination in November 2009 where he reported his sinus problem started during his military service. The VA examiner noted an October 1978 in-service treatment record of right facial pain and a sinus x-ray revealing clear sinuses and probable mucus cyst in the right maxillary sinus. The Veteran was diagnosed with acute right maxillary sinusitis in October 1981 and was treated with antibiotics. The Veteran's July 1992 separation examination did not indicate a history of sinusitis or current sinus problems. The VA examiner acknowledged the Veteran's history of a sinus condition post-service at Umpqua Valley Urgent Care in the 2000s. Upon physical examination, the Veteran was diagnosed with a recent history of recurrent acute sinusitis. Given the new evidence that the Veteran's is currently diagnosed with recurrent sinusitis a possibility of substantiating a claim has been raised. Consequently, the claim for entitlement to service connection of a history of maxillary sinusitis is reopened. III. Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, the Board notes that the Veteran has been diagnosed with sensorineural hearing loss in the right ear, which is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). As such, the Veteran can establish service connection for sensorineural hearing loss in the right ear solely based on lay statements of continuity of symptomatology since service. However, PTSD and depressive disorder are not chronic diseases under 38 C.F.R. § 3.309(a). Therefore, continuity of symptomatology cannot establish service connection under 38 C.F.R. § 3.303(b). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay 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 professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing loss in the right ear For the 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2012). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran alleges that his right ear hearing loss stems from loud noise exposure in the course of performing his duties as a Military Policeman. He stated he was exposed to everyday traffic noises from cars while patrolling or directing traffic, noises from heavy armor and dealing with weapon noises, and noises from helicopters. The Veteran's DD 214 confirms he was in the military police for fifteen years and six months. According to the Veteran's in-service treatment records, there are no complaints, treatment, or diagnosis for right ear hearing loss or acoustic trauma. A November 1985 audiometric testing revealed puretone threshold as the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 20 15 A March 1991 audiometric testing revealed puretone threshold as the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 5 15 20 The Veteran's July 1992 separation examination was also absent of any hearing loss. The audiometric testing at this time was the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 20 Following separation, the evidence of record is silent of any diagnosis for right ear hearing loss. Private treatment from the Roseburg Audiology Center dated May 2002 indicated normal hearing thresholds through 2000 Hz sloping to a mild to moderate sensorineural loss for frequencies 3000 Hz and above. A December 2004 exam reported severe sensorineural loss in the right ear. No etiological opinion was provided. In January 2005, the Veteran was treated for right ear hearing loss at the VA medical center where he reported longstanding bilateral high-frequency hearing loss related to his military service. The Veteran stated that staring in November 2004, "he woke up one day feeling like someone put a cover over his right ear and has never recovered. He never experienced anything quite like this before although has had intermittent episodes where he felt like his hearing may be diminished and it was felt that he may have had a stroke, although he does not recall ever getting any MRI or CT scan." A physical examination determined his tympanic membranes were both mobile, clear external canals with insufflations on the right side. The Veteran did not complain of vertigo, and no nystagmus was observed. The Veteran was diagnosed with asymmetric hearing loss. A September 2006 VA audiological examination report indicated that audiometric testing revealed puretone threshold as the following: HERTZ 500 1000 2000 3000 4000 RIGHT 85 90 80 80 80 The Veteran was diagnosed with severe sensorineural hearing loss of the right ear. The examiner stated that the current right ear hearing loss was not caused by or the result of his noise exposure or other circumstances during his military service. In October 2006, the Veteran underwent a VA examination for ear disease. The VA examiner noted the Veteran's history and his sudden onset of hearing loss in the right ear. While no active ear disease was identified, he had a sensorineural hearing loss in his right ear. A MRI was normal. The VA examiner stated that while the cause of the sudden hearing loss in the right ear was unknown, it was not related to the time he was in the military as occurred suddenly two years prior. A December 2011 letter from Dr. S. A., the Veteran's private audiologist from Roseburg Audiology Center, recalled the Veteran's military history of noise exposure from small arms fire, artillery tanks, and 10-ton trucks. The Veteran was first seen in May 2002 where he was diagnosed with mild to moderately severe high frequency sensorineural hearing loss. Dr. S. A. opined the Veteran's hearing loss was more likely than not directly related to his service. However, the Veteran's sudden decrease in hearing to the right ear in November or December 2004 was not likely directly related to his military service. The Veteran was afforded another VA audiologic examination in June 2012 where an audiometric testing revealed puretone threshold as the following: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 95 100 105 Speech audiometry revealed speech recognition ability of 0 percent. Upon review of the evidence of record, a physical examination and the Veteran's lay statements, the VA examiner opined that the right ear hearing loss was not at least as likely as not caused by or a result of an event in his military service has be had normal hearing in the right ear at separation and as he had sudden onset of hearing loss in the mid-2000s. The Board acknowledges that the post-service treatment records does reflect right ear hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. According to the record, as stated above, the Veteran was first diagnosed with sensorineural hearing loss for frequencies 3000 Hz and above in May 2005. In addition, the Board also acknowledges the Veteran's report of being exposed to acoustic trauma in service (i.e. firing weapons, exposure to gunfire, and motor vehicle traffic and helicopters) to be credible given his consistent statements of noise exposure and his military occupational specialty. In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). Service incurrence of an acoustic trauma injury has been demonstrated. A finding of a nexus between the Veteran's current right ear hearing loss and his in-service noise exposure is still needed to substantiate a claim of service connection. The Board notes there are several nexus opinions, positive and negative, of record. First, the Board finds the etiological opinion offered in the June 2012 VA examination is inadequate. As stated previously, the Court, in Hensley, 5 Vet. App. at 155, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between a Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that 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). The June 2012 VA examiner's opinion regarding etiology of the Veteran's right ear hearing loss appears to be based on the fact that hearing was within normal limits in the right ear at the time of military separation in 1992. As this opinion is against the determination of Hensley, the Board finds it is inadequate. Next, the Board acknowledges the positive nexus opinion from Dr. S. A. in December 2011. Dr. S. A. stated that the Veteran was initially diagnosed with hearing loss in the right ear in 2002 and that it is more likely than not that a significant portion of it was due to noise exposure during his military service. Dr. S. A., however, also stated that the sudden decrease in hearing in the right ear that occurred in 2004 is not related to his military service. Dr. S. A. based his opinion on the Veteran's competent lay statements and the Veteran's military history. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Finally, the September and October 2006 VA examinations both concluded that the Veteran's sudden decrease in right ear hearing loss was not related to his military service. The VA examiners also referred to the lack of a right ear disability during service and at separation. Again, the Board finds these opinions are not adequate as it failed to discuss the Veteran's diagnosis of right ear sensorineural hearing loss in 2002 and as it was based on the fact that the Veteran did not have a right ear disability during service and at separation. In view of the totality of the evidence, including the Veteran's documented in-service duty assignment, the recognition of in-service noise exposure, current findings of right ear hearing loss, and the credible lay assertions of record, the Board finds that right ear hearing loss is causally related to noise exposure during active service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for right ear hearing loss is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired psychiatric disorder to include PTSD and depressive disorder The Veteran alleges that his PTSD and depressive disorder stems from trauma experienced while serving in the military. Specifically, the Veteran stated that he was involved in a motor vehicle accident in 1980 while stationed in Korea which resulted in the death of a civilian pedestrian. The Veteran stated this experience was extremely traumatic and still negatively affects him presently. As regards the first, fundamental requirement for service connection, diagnoses of PTSD must be rendered in accordance with the diagnostic criteria set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). In this case, the Board notes that the Veteran was afforded a VA psychiatric examination in March 2006 where the VA examiner concluded that the Veteran did meet the criteria for a diagnosis of PTSD. Thus, the Board finds that the Veteran has currently diagnosed PTSD in accordance with the provisions of 38 C.F.R. § 4.125. The Veteran was also diagnosed with depressive disorder at this examination. Additionally, evidence within the record established a link between the Veteran's current symptoms of an acquired psychiatric disorder and the alleged in-service stressor. According to a May 2012 letter from his private psychologist, Dr. J. E., the following determination was provided: I have diagnosed [the Veteran] with [PTSD], more likely than not related to his time in the service. [The Veteran] and I have worked on his PTSD issues stemming from a car accident in which he accidently killed a civilian in Korea. This trauma was intensified by the fact that [the Veteran] was put through a criminal investigation and there remains contention as far as the accident itself. This has understandably been very difficult for [the Veteran] and has caused ongoing sequalae in terms of his life since then. Furthermore, according to another letter from a private psychiatric mental health nurse practitioner, T. L., the Veteran was diagnosed with PTSD and recurrent depression, moderate severity, and opined that the Veteran's PTSD was "more likely than not caused from his trauma in the military with depression." The evidence of record further verifies that the Veteran was involved in a motor vehicle accident in November 1981 in Wonju, South Korea, and a criminal investigation commenced. As such, the record contains credible evidence corroborating the Veteran's stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). This evidence would suggest that the Veteran is entitled to service connection for PTSD, unless the PTSD was the result of the Veteran's own willful misconduct. The Board notes that direct service connection may be granted only when a disability was incurred in or aggravated in line of duty, and not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.301(a) (2012). "In line of duty" means an injury or disease incurred or aggravated during active service unless the result of the veteran's own misconduct. 38 C.F.R. § 3.1 (m) (2012). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2012). According to the U.S. Army's Criminal Investigation Command's Report of Investigation, on November 2, 1981, at approximately 1840 hours, the Veteran was driving a US government vehicle when he failed to observe a pedestrian attempting to cross the street in a properly marked, posted, and lighted, pedestrian crosswalk. The pedestrian was struck by the Veteran's vehicle and killed. The investigation determined it was through the Veteran's failure to wear his eyeglasses, as required by both his military and civilian operator's license, he was unable to observe the pedestrian. In an April 2013 Administrative Decision, the RO determined that the Veteran's stressor was due to his own willful misconduct and not incurred in the line of duty. The Veteran did not appeal this Administrative Decision. Considering the evidence of record, the Board finds that service connection is not warranted for an acquired psychiatric disorder, to include PTSD and depressive disorder, because the disorder was caused by the Veteran's own willful misconduct. Under these circumstances, the Board concludes that even though the evidence shows the Veteran has an acquired psychiatric disorder medically linked to an in-service stressor, it was the result of his own willful misconduct and not incurred in the line of duty. Thus, service connection for his acquired psychiatric disorders, to include PTSD and depressive disorder, cannot be granted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence reflects that the Veteran's acquired psychiatric disorder, to include PTSD and depressive disorder, was the result of his own willful misconduct, that doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence has not been received, the claim for service connection for residuals of pneumonia and right pleural effusion is not reopened. As new and material evidence has been received, the claim for entitlement to service connection for a history of maxillary sinusitis, is reopened and, to that extent only, the appeal is granted. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and depressive disorder, is denied. REMAND The Board finds a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). As stated above, the Veteran was afforded a VA examination in November 2009 where the VA examiner opined: It is my opinion that it would be mere speculation that his current recurrent acute sinusitis is related to the time he was in the service. He was seen and evaluated on a couple of time[s] while in service for sinusitis, but that was over a period of several years. He did have x-rays of his sinuses while he was in the service and they were negative. The examiner's equivocal or inconclusive opinion amounts to no evidence, neither for nor against the Veteran's claim because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); 38 C.F.R. § 3.102 (2012) (reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). As it remains unclear to the Board whether the Veteran's recurrent sinusitis is related to his military service, it is necessary to have a medical opinion discussing the relationship between his recurrent sinusitis and service based upon a thorough review of the record, comprehensive examination of the Veteran, and adequate rationale. The Board notes that the examiner must consider lay statements regarding in-service occurrence of sinusitis. Dalton v. Nicholson, 21 Vet. App. 23 (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). Moreover, if a diagnosis or etiology opinion is not possible without resort to speculation, the examiner must provide a reason why speculation would be required by explaining the basis for such an opinion, basing the opinion on sufficient facts or data, and clearly identifying precisely what facts cannot be determined. Additionally, the examiner may have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of the examination. Jones v. Shinseki, 23 Vet. App. 382 (2010). Therefore, the Board finds that another examination and opinion addressing the etiology of the Veteran's disorder is necessary in order to fairly decide the merits of his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records pertaining to the Veteran's recurrent sinusitis and associate them with the claims file. If any of the above requested records are shown to be at another storage facility, a request should be made to the appropriate storage facility. All efforts to obtain the records should be fully documented, and the facilities must provide a negative response if records are not available. 2. Schedule the Veteran for a VA sinus examination to determine the etiology of any current sinus disability. The examiner should determine whether it is at least as likely as not (50 percent probability or greater) that any current sinus disability, namely recurrent sinusitis, is etiologically related to any incidents of the Veteran's period of active service? If necessary, the examiner should reconcile the opinion with the other medical opinions of record. The rationale for any opinions expressed should be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a reason why speculation would be required by explaining the basis for such an opinion, basing the opinion on sufficient facts or data, and clearly identifying precisely what facts cannot be determined. When formulating an opinion, the examiner must consider and address the Veteran's lay statements regarding his symptomatology, the service treatment records, and all relevant post-service treatment records, discussed above. A complete rationale must be provided for all opinions offered. The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. All findings and conclusions should be set forth in a legible report. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal, in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs