Citation Nr: 1529582 Decision Date: 07/10/15 Archive Date: 07/16/15 DOCKET NO. 13-29 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1963 to February 1964. These matters are before the Board of Veterans' Appeals (Board) on appeal from February and October 2011 rating decisions of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Board notes that the Veteran has been assigned diagnoses of psychiatric disabilities other than PTSD. Recent caselaw provides that the scope of a mental health disability claim includes any mental disability that may be reasonably encompassed by the claimant's description of the disability, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The instant case is distinguished from Clemons, as it involves a specific attempt by the Veteran to reopen a claim of service connection for PTSD (due to personal assault) that was previously finally denied, and requires submission of new and material evidence before it may progress to de novo review. As there is no prior RO determination in the matter of service connection for psychiatric disability other than PTSD, any decision in that matter would require de novo review. Consequently, the Board finds that the instant claim to reopen involves PTSD only. The issue service connection for PTSD on the merits is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. By decision dated March 2008, the RO denied service connection for PTSD on the basis that it was not present in or caused by service. 2. The evidence added to the record since the March 2008 determination provides a reasonable possibility of substantiating the claim for service connection for PTSD. 3. A bilateral hearing loss was initially manifested many years after, and is not shown to be related to, the Veteran's service. 4. Tinnitus was not manifested in, and is not shown to be related to, the Veteran's service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). 3. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.307, 3.3309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence in June 2010, VA notified the Veteran of the information needed to substantiate and complete her claims, to include notice of the information that she was responsible for providing, evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. The letter met the requirements of Kent v. Nicholson, 20 Vet. App. 1 (2006) regarding reopened claims. The notification sent to the Veteran was adequate, and further, it has not been alleged otherwise by the Veteran or her representative. The Veteran's service treatment records are associated with the record and pertinent VA medical records have been secured. She was not afforded a VA examination regarding her claims for service connection for bilateral hearing loss and tinnitus. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Here, the McLendon criteria are not satisfied. Specifically, the competent evidence does not indicate that there is a relationship between service and bilateral hearing loss or tinnitus. Under these facts, an examination is not required. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. The Veteran had not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background, Legal criteria and Analysis The September 2013 statement of the case reopened the claim for service connection for PTSD, and decided it on the merits. Nevertheless, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The service treatment records show the Veteran denied ear trouble on an October 1963 report of medical history. A February 1964 Medical Survey report shows the Veteran had been having difficulty in her service adjustment since enlistment and, this had become manifest to the point that retention on active duty was not feasible. It was indicated she was unsuitable for service, and discharge was recommended. While at boot camp following her enlistment, she had a considerable number of demerits for misdemeanor behavior although she was able to satisfactorily complete the class work. It was the opinion of the Board that the Veteran manifested an emotionally unstable personality that rendered her unsuitable for further service. She suffered from no disability that was the result of an incident of service or which was aggravated thereby. The ears and eardrums were normal on the February 1964 separation examination. A psychiatric evaluation was abnormal and an emotionally unstable personality was noted. An audiogram shows that the hearing threshold levels in decibels in each ear were 10 (25), 10 (20), 10 (20) and 10 (15), at 500, 1,000, 2,000 and 4,000 Hertz, respectively. Prior to November 1967, the service department reported audiometric test results under American Standard Associates (ASA) values. The Department of Defense adopted the International Standards Organization (ISO) values in November 1967. In July 1966, the VA adopted the ISO standard, which is the standard applied in 38 C.F.R. § 3.385. The figures in parentheses represent the conversion from the ASA to the ISO values. VA medical records disclose the Veteran was seen in February 1996. She stated she had been involved in abusive situations while in relationships and that she had been victimized both physically and sexually by persons outside the context of a relationship. She reported having a nervous breakdown in 1989 after her divorce. She stated she was offered a discharge from service after she had been raped by her commanding officer. She claimed she was raped around 1967 or 1968 by an acquaintance who held a gun to her head, and she reported other rapes that occurred following service. VA medical records show the Veteran was seen in February 1997 and it was noted she had been discharged in July 1996 with diagnoses of adjustment disorder with mixed emotional features and polysubstance dependence. She related a history of PTSD which had resulted from two rapes. She was seen in the mental health clinic in October 2003 and wanted to talk about her rape in service. She expressed a lot of anger toward the perpetrator. She talked about accepting the honorable discharge instead of charging the perpetrator. She asserted she was discouraged by Naval officers to not make the incident public. She stated the incident completely changed her life. The assessments were major depressive disorder, recurrent, and PTSD. In July 2007, she reported she had nightmares and flashbacks concerning her rape in service. The diagnoses were PTSD and major depressive disorder, recurrent. The Veteran submitted a claim for service connection for PTSD in August 2007. She stated she had been raped by the commander of the hospital. A March 2008 rating decision denied the Veteran's claim for service connection for PTSD on the basis that it was not present in or caused by service. The Veteran was notified of this decision, but did not file a timely appeal. No new and material evidence was received by VA within one year of the March 2008 decision. The Veteran sought to reopen her claim for service connection for PTSD in May 2010. The Veteran was seen in a VA audiology clinic in June 2011. She reported a gradual hearing loss and noise exposure in service. She described a left tympanic membrane perforation due to a barotrauma in service. She also reported bilateral tinnitus. She stated she had experienced three incidents of profound hearing loss during times of anxiety, but that her hearing had returned. Following audiometric testing, it was indicated that the speech reception thresholds suggested mildly elevated pure tone thresholds. An August 2011 VA psychology note shows a diagnostic impression of PTSD. It was stated that the Veteran's PTSD was directly related to military sexual assault and reinforced by subsequent sexual assault experiences. She manifested repeated patterns involving difficulties with power and control in her interpersonal relationships, in particular the relationship with her son. The assessments were PTSD (secondary to military sexual trauma), major depressive disorder, and borderline personality disorder. In September 2012, the Veteran related that after a high dive in service, she had blood coming out of her left ear, and was told she had a concussion. She claimed her tinnitus began then. The examiner commented that her current hearing configuration was not indicative of middle ear pathology. It was consistent with presbycusis and noise exposure. It was also noted that she had a normal tympanogram in the left ear, indicating that any tympanic membrane perforation was no longer present. The Veteran reported in July 2013 that she had been raped twice in service. She mentioned she was raped by her commanding officer and then, in a separate incident, by a patient she was taking from the hospital to the train station. New and material evidence When there is a final rating decision on a claim of service connection, such claim may not be reopened and allowed based on the same factual basis. 38 U.S.C.A. § 7105. However, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low" threshold standard requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence received since the RO denied service connection for PTSD in March 2008 includes the August 2011 VA medical record that indicates that the Veteran's PTSD is related to service. Thus, the additional evidence raises a reasonable possibility that the Veteran has PTSD that is related to service, when considered in conjunction with the record as a whole. The Board concludes, therefore, that new and material evidence has been received, and the claim for service connection for PTSD is reopened. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases (among them SNHL and tinnitus as organic diseases of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for organic disease of the nervous system). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that service connection may be granted for such chronic diseases based solely on continuity. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss disability for VA compensation purposes is defined in 38 C.F.R. § 3.385. Impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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. To establish service connection for hearing loss, it is not required that a hearing loss disability under 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by such standards must be currently present; service connection is possible if a current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In Hensley v. Brown, 5 Vet. App. 155, the United States Court of Appeals for Veterans Claims held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. The Veteran claims her hearing loss and tinnitus stem from an incident in service when she dove into a pool from the highest platform and says she sustained a perforated eardrum. She states her ears were bleeding and that she was hospitalized for one week after this incident. The service treatment records contain no support for the Veteran's allegations. There is no record of any hospitalization for a perforated eardrum. She specifically denied any ear problems in October 1963, and the separation examination in February 1964 demonstrated the ears were normal. There was no indication of a perforation. The Board acknowledges the audiogram at that time showed some hearing loss at 500 Hertz in each ear. The service treatment records do not mention tinnitus. First, the evidence does not show that she was diagnosed with a chronic hearing loss disability or tinnitus during service. Therefore, there is no basis for finding service connection is warranted for a condition that began in service and has persisted. Second, neither SNHL nor tinnitus is not shown to have manifested during service or within the first postservice year. Therefore, service connection is also not warranted on a presumptive basis for SNHL or tinnitus as a chronic disease under 38 U.S.C.A. § 1112. Notably, the evidence does not suggest that she has had continuous symptoms of hearing loss or tinnitus since her discharge from military service. Thus, service connection is also not warranted based on continuity of symptomatology. Consequently, what must be shown to substantiate the Veteran's claim in this matter is that her current bilateral hearing loss and tinnitus disabilities are otherwise medically related to her service or noise exposure therein. The Board notes that there is no indication for many years following service of a hearing loss or tinnitus. Compare Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In 2011, the Veteran stated her hearing loss had developed gradually and attributed it to unspecified noise exposure in service as well as barotrauma. The Board finds, therefore, that the Veteran's statements regarding the origins of her hearing loss and tinnitus are not credible. This is so because her reports of a perforation of the tympanic membrane due to barotrauma in service are contradicted by the contemporaneous medical evidence of record and were first made over 45 years after service in connection with a claim for compensation. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). She specifically denied any ear problems in October 1963, and the separation examination in February 1964 demonstrated the ears were normal. These inconsistencies in the record also weigh against the Veteran's credibility as to any assertions of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). As such, continuity of symptomatology has not been established, and the Veteran's statements, standing alone, do not provide probative information. The Veteran has not submitted any medical evidence demonstrating that either her bilateral hearing loss or tinnitus, both of which were manifested decades after service, are related to service. The Veteran's assertions that her hearing loss and tinnitus are related to service are not competent evidence in this matter. Laypersons are competent to provide opinions on some medical issues. However, the etiology of bilateral hearing loss and tinnitus, particularly in a complex case involving assertions of residuals of barotrauma, falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the preponderance of the evidence of record establishes that the Veteran's bilateral hearing loss and tinnitus became manifest years after, and are not shown to be related to, her service. Accordingly, the preponderance of the evidence is against the claims of service connection for a bilateral hearing loss and tinnitus. ORDER New and material evidence has been received, and the claim for service connection for PTSD is reopened. Service connection for bilateral hearing loss and tinnitus is denied. REMAND The Board finds that further development is needed for proper de novo adjudication of the reopened claim of service connection for PTSD. The August 2011 VA treatment record is insufficient to grant service connection because no supporting rationale was provided and it is not clear if the Veteran's records were reviewed. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, a VA examination must be requested. In addition, another attempt should be made to obtain a police report identified by the Veteran. She asserts that she filed a police report with New York City following the in-service rape. In a November 2012 letter, the Veteran referred to public inquiry and request verification of aiding the victim and provided the following identification information-PD 304-161 or PD 542-061. The RO sent a letter in December 2012 to the Verification Unit of the New York City Police Department, but no response was received. Accordingly, the case is REMANDED for the following action: 1. Please obtain any outstanding VA treatment records pertaining to mental health treatment. 2. Please make another request to the New York City Police Department to obtain the police report the Veteran states she filed around November 1963. Please reference "PD 304-161 or PD 542-061" in the request. 3. Please arrange for a VA examination by a psychiatrist or psychologist to determine whether the Veteran has PTSD and, if so, whether it is at least as likely as not (a 50 percent or greater probability) due to service, including her reported in-service personal assault. The psychiatrist or psychologist should consider, and discuss as necessary the service treatment records, the August 2011 psychology note relating her PTSD to MST; and her various reports of in-service and post-service personal assaults. The Veteran's record must be reviewed by the examiner in conjunction with the examination. All indicated studies must be completed. The rationale for all opinions should be set forth. 4. The AOJ should then review the record and readjudicate the claim on appeal. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board. 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 2014). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs