Citation Nr: 1337684 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-28 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased (compensable) rating for status post meningitis due to neisseria meningitis group Y. 2. Entitlement to service connection for hypertension. 3. Whether new and material evidence has been received to reopen a claim for service connection for right ear hearing loss disability. 4. Entitlement to service connection for right ear hearing loss disability. 5. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 6. Entitlement to service connection for tinnitus. 7. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for mental problems. 8. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his mother, and a friend ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to February 1975. These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In those decisions, the RO denied entitlement to an increased rating for meningitis, denied entitlement to service connection for hypertension, and denied applications to reopen previously denied claims for entitlement to service connection for right ear hearing loss disability, tinnitus, and mental problems. In July 2013, the Veteran testified at a hearing before the undersigned using video-conferencing technology; a transcript of that hearing is of record. The issues of entitlement to service connection for right ear hearing loss, tinnitus, and an acquired psychiatric disorder other than PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's meningitis is not active and there are no residuals. 2. Hypertension did not manifest in service, within the one year presumptive period or for many years thereafter, and is unrelated to service. 3. In a November 1989 rating decision, the RO denied the Veteran's application to reopen his claim for entitlement to service connection for right ear hearing loss disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 4. Evidence received since the November 1989 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for right ear hearing loss disability and raises a reasonable possibility of substantiating the claim. 5. In an April 1993 rating decision, the RO denied the Veteran's claim for entitlement to service connection for tinnitus. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 6. Evidence received since the April 1993 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for tinnitus and raises a reasonable possibility of substantiating the claim. 7. In a November 2006 rating decision, the RO denied the Veteran's claim for entitlement to service connection for mental problems. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 8. Evidence received since the November 2006 decision relates to an unestablished fact necessary to substantiate the recharacterized claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for an increased, compensable rating for status post meningitis due to neisseria meningitis group Y have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.31, 4.124a, Diagnostic Code (DC) 8019 (2013). 2. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. The November 1989 decision that denied the application to reopen the claim for entitlement to service connection for right ear hearing loss disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2013). 4. Evidence received since the November 1989 decision is new and material and the claim for entitlement to service connection for right ear hearing loss disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 5. The April 1993 decision that denied the claim for entitlement to service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 6. Evidence received since the April 1993 decision is new and material and the claim for entitlement to service connection for tinnitus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 7. The November 2006 decision that denied the claim for entitlement to service connection for mental problems is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 8. Evidence received since the November 2006 decision is new and material and the recharacterized claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (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). As the Board is granting the applications to reopen, further discussion of the VCAA with regard to these claims is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). As to the remaining claim being decided herein, for entitlement to service connection for hypertension and an increased rating for meningitis, in an April 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate these claims. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the April 2008 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the April 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran was afforded an April 2008 VA examination as to the severity of his meningitis. For the reasons stated below, the Board finds that this examination was adequate. The Veteran has not been afforded a VA examination as to the etiology of his hypertension. Such an examination was not, however, required pursuant to VA's duty to assist because, for the reasons stated below, the evidence does not indicate that the Veteran's current hypertension may be associated with service. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for entitlement to an increased rating for meningitis, for entitlement to service connection for hypertension, and the applications to reopen are thus ready to be considered on the merits. Analysis Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the uniform noncompensable rating is proper. The Veteran's meningitis is rated under 38 C.F.R. § 4.124a, DC 8019, applicable to epidemic cerebrospinal meningitis. Pursuant to DC 8019, a minimum 10 percent rating is assigned for ascertainable residuals and 100 percent is provided when meningitis is an active febrile disease. Id. A Note following DC 8025 provides that it is required for the minimum ratings for residuals under DCs 8000-8025 that there be ascertainable residuals. The Note also provides that determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded, and subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. More generally, the Rating Schedule authorizes the assignment of a noncompensable evaluation in every instance in which the Rating Schedule does not provide such an evaluation and the requirement for a compensable evaluation are not met. 38 C.F.R. § 4.31. In this case, the April 2008 VA examiner recounted the Veteran's in-service hospitalization for meningitis, prior psychiatric hospital admissions and alcohol rehabilitation admissions. After examining the Veteran and reviewing electronic records but not the claims file, the April 2008 VA examiner diagnosed history of meningitis treatment in 1974, indicated that there were no residual symptoms and no residual signs following meningitis, stated that the present psychiatric condition not related to meningitis, and noted that the Veteran's complaint of memory problem was related to past alcohol use. Although the VA examiner did not give a detailed rationale for his opinions, the fact that he rendered his conclusions after examining the Veteran, reviewing medical records, and accurately stating the Veteran's medical history based on the Veteran's recounting of this history warrants the conclusion that his opinions are entitled to at least some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). Moreover, these conclusions are consistent with the other evidence of record, such as the November 2000 VA non service connected pension examination on which it was indicated that the Veteran had a history of meningitis in service that could not be documented at that time and the April 1993 VA examination report diagnosing recurrent meningitis by history and alcohol abuse with mild cognitive dysfunction at least in part due to both of these. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board also notes that lack of claims file review does not in and of itself render an examination report inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("This Court, however, has not required VA medical examiners to perform a complete review of the entire claims file or state that they have done so in every instance") (citing Snuffer v. Gober, 10 Vet.App. 400, 403-04 (1997); D'Aries v. Peake, 22 Vet.App. 97, 106 (2008)). See also VAOPGCPREC 20-95 (July 14, 1995) (listing circumstances in which claims folder should be reviewed prior to VA examination, but declining to adopt a rule requiring such review in every case). In this case, the primary issue was whether there were current residuals of the Veteran's meningitis, and the VA examiner found that there were no such residuals based on his examination of the Veteran and review of medical record. The Board finds that this probative opinion is adequate to decide the claim. The Veteran testified during the Board hearing that his meningitis caused him to have the shakes, nerves, difficulty walking and making good decisions (p. 8). The Veteran is competent to testify as to his symptoms, but the question of whether these symptoms are due to meningitis or something else appear to be testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). To the extent that the Veteran is competent to testify on this question, the Board finds the specific opinion of the trained health care professional that there were no residual signs or symptoms of meningitis to be of greater probative weight than the Veteran's lay assertions. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a compensable rating at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim an increased, compensable rating for meningitis must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Further, in the absence of any identifiable residuals, extraschedular consideration is not for application. See 38 C.F.R. § 3.321. 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 competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan, 573 F.3d at 1287; 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a chronic disease, and the Board will therefore consider whether the provisions of 38 C.F.R. § 3.303(b) are for application. In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, chronic diseases including hypertension are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 defines hypertension as diastolic blood pressure predominantly 90 mm. or greater, and isolated systolic hypertension as systolic blood pressure of predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Initially, the Board notes that there is neither lay nor medical evidence of hypertension in the STRs or for many years thereafter. The STRs do not contain any reference to complaint, symptoms, treatment, or diagnoses of hypertension. While the Veteran is competent to report high blood pressure readings or a diagnosis of hypertension, see Jandreau, 492 F.3d at 1377 (lay witnesses competent to report contemporaneous medical diagnosis), he did not do so here. Rather, the Veteran stated during the Board hearing that he was dizzy and lightheaded but did not indicate when these symptoms first manifested and did not recall when he was first treated for hypertension, stating only that he was taking medication for hypertension for "many years" (pp. 17-18). Moreover, the evidence reflects that the Veteran did not have blood pressure readings indicating hypertension until many years after service. A January 1982 VA hospital summary indicated that the Veteran's blood pressure was 120/80. Blood pressure was 132/70 in April 1987, 140/84, 140/85, and 142/88 in May 1987, 139/89 in April 1988, and 134/90 in a November 1988. The first diagnosis of hypertension appears in a January 2000 private treatment note from the Madera Community Hospital. Shortly thereafter, on the November 2000 VA examination performed in connection with the Veteran's claim for non service connected pension, blood pressure readings were 160/100 and 170/00. The evidence thus reflects that hypertension did not manifest in service or for many years thereafter, and that the Veteran did not have high blood pressure until many years after service. The Veteran's statements do not indicate to the contrary. As hypertension was not noted in service or for many years thereafter, entitlement to service connection pursuant to the chronicity and continuity provision of 38 C.F.R. § 3.303(b) is not warranted. For similar reasons, entitlement to service connection for hypertension is not warranted on a presumptive basis. The only remaining question is whether the Veteran's current hypertension is otherwise related to service. There is, however, no evidence that indicates that this is the case, other than the Veteran's lay statements. As to whether the Veteran is competent to opine that his hypertension is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to his hypertension is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). There is thus no competent evidence of a nexus between hypertension and service. As to whether a VA examination was warranted to address the issue of a nexus between hypertension and service, under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. As indicated above, the only evidence of a possible association between hypertension and service is the Veteran's conclusory generalized lay statement suggesting such a nexus, and that is not enough to warrant a VA examination under the applicable precedents. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension. The benefit-of-the-doubt doctrine is therefore not for application, and the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. Reopening Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him"). For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to determine whether new and material evidence has been received, the Board must analyze the law applicable to the underlying service connection claims. In addition to the general service connection principles noted above, 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. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Each of the applications to reopen in this case pertain to claims that were denied in different prior rating decisions. With regard to right ear hearing loss, the claim was initially denied in April 1976. The RO denied the Veteran's application to reopen this claim in November 1989. The Veteran was notified of this denial in a December 1989 letter but did not appeal, and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Separately, in April 1993, the RO denied the Veteran's claim for entitlement to service connection for tinnitus. The Veteran was notified of this denial in a May 1993 letter but did not appeal, and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Finally in this regard, in November 2006, the RO denied entitlement to service connection for mental problems. The Veteran was notified of this denial in a letter later that month but did not appeal, and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. With regard to the right ear hearing loss disability, the basis for the initial denial was that, although decreased hearing in the right ear was noted in the STRs at the time of the Veteran's hospitalization for meningitis, there was no subsequent indication of hearing loss. In the subsequent, most recent November 1989 denial, the RO indicated that evidence of recent treatment for hearing loss, in particular a January 1989 Beltone audiogram showing hearing loss disability at 6000 Hertz, and abnormal hearing but not disability at 500, 2000, and 4000 Hertz, was not new and material to the issue of service connection for right ear hearing loss disability. Thus, at the time of the most recent prior denial, there was no evidence of a right ear hearing loss disability as defined in VA regulations. The evidence since that denial, however, includes a December 2009 VA audiological consultation that indicated the Veteran had right ear hearing loss disability, specifically speech recognition score of 80 percent in the right ear. As there was a lack of evidence of current right ear hearing loss disability at the time of the most recent prior denial, and the evidence received since that prior denial included evidence of current right ear hearing loss disability, the new evidence relates to a basis for the prior denial and raises a reasonable possibility of substantiating the claim. Reopening of the claim is therefore warranted. As to tinnitus, the RO indicated in its April 1993 denial that service connection could not be granted for tinnitus because there was no evidence of this disorder in service. At that time, the Veteran had indicated in his May 1992 claim that he sought service connection for "ear," and he did not specifically indicate that he currently had tinnitus or that he had tinnitus in service. Evidence received since the April 1993 denial, specifically the Veteran's July 2013 Board hearing testimony, indicates that he experienced tinnitus in service while hospitalized for meningitis (p. 17), that he currently had tinnitus (p. 7), and that he was exposed to loud noise in service, in particular shooting an M16 (p. 7). Tinnitus, i.e., ringing in the ears, is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). As there is thus competent evidence of in-service noise exposure and tinnitus and current tinnitus, evidence that was lacking at the time of the most recent prior denial, reopening of the claim for entitlement to service connection for tinnitus is warranted. As to the application to reopen the claim for entitlement to service connection for mental problems, the RO's November 2006 denial was based on the fact that the STRs were completely negative for any complaints, diagnosis, or treatment of mental illness. The evidence received since the prior denial includes the Veteran's Board hearing testimony that indicates he had psychiatric symptoms such as depression in service or shortly thereafter (p. 19). The evidence received since the prior denial also includes multiple diagnoses of psychiatric disorders. As evidence received since the prior denial includes evidence of in-service symptoms that was lacking at the time of the prior denial, and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for mental problems is warranted. The Board notes that, while the issue was characterized as entitlement to service connection for mental problems at the time of the prior denial and the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disability, the disorder for which service connection is being sought is essentially the same one that was previously denied, thus warranting consideration of the claim as an application to reopen. Cf. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed.Cir.1996) (claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits). In addition, although the Veteran has been diagnosed with PTSD and this disorder must be considered in connection with this claim regardless of whether specifically raised by the Veteran, Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the RO in February 2010 denied entitlement to service connection for PTSD and denied reopening of this claim in August 2011. The Veteran did not timely appeal this most recent denial, and the issue of whether reopening of the claim for entitlement to service connection for PTSD, having been separately adjudicated, is not before the Board. ORDER Entitlement an increased (compensable) rating for status post meningitis due to neisseria meningitis group Y is denied. Entitlement to service connection for hypertension is denied. The application to reopen the claim for entitlement to service connection for right ear hearing loss disability is granted. The application to reopen the claim for entitlement to service connection for tinnitus is granted. The application to reopen the claim for entitlement to service connection for mental problems is granted. REMAND As noted above, the Veteran is competent to testify to in-service noise exposure, symptoms of tinnitus and hearing loss. The above evidence thus reflects that the Veteran has current hearing loss disability, tinnitus, and psychiatric disorders other than PTSD that may be associated with service. The April 2008 VA examiner, a neurologist, did not diagnose a specific psychiatric disorder and did not indicate whether it was related to service (as opposed to service-connected meningitis). Consequently, VA audiological and psychiatric examinations are warranted. Accordingly, the claims for entitlement to service connection for right ear hearing loss disability, tinnitus, and an acquired psychiatric disorder other than PTSD are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination as to the etiology of his right ear hearing loss disability and tinnitus. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's right ear hearing loss and/or tinnitus is related to his in-service noise exposure or anything else in service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 2. Schedule the Veteran for a VA psychiatric examination as to the etiology of any current psychiatric disorder other than PTSD. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first diagnose any current psychiatric disorders other than PTSD. Then, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the any such disorder is related to service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms including psychiatric symptoms in service, and that his reports must be taken into account in formulating the requested opinion. 3. After the above development has been completed, readjudicate the claims for entitlement to service connection for right ear hearing loss disability, tinnitus, and an acquired psychiatric disorder other than PTSD. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs