Citation Nr: 1540840 Decision Date: 09/22/15 Archive Date: 10/02/15 DOCKET NO. 14-09 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of service connection for a nervous disorder, to include major depressive disorder and schizophrenia. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The appellant had active duty for training from April 23, 1984, to July 27, 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma. The Board finds that the nervous disorder claimed and denied previously in June 2010 and the current claim are the same, as the Veteran has identified the same disability in each claim and reported an onset during service. The Board, therefore, does not construe the current claim as a claim for a "distinctly diagnosed disease" from the claim for a nervous condition adjudicated in 2010. As such, his current claim is not a separate and distinct claim, but rather a claim to reopen his prior determination. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Additionally, as the Veteran has been diagnosed with schizophrenia and major depressive disorder, the Board has re-characterized the underlying issue as service connection for a nervous disorder, to include schizophrenia and major depressive disorder, to ensure that adequate development and consideration is given, regardless of the precise diagnosis. See Clemons v Shinseki, 23 Vet. App 15 (2009). Also, regardless of the RO's actions, because the June 2010 rating decision became final (as will be explained in detail below), the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the previously denied service connection claims. The Board is required to address this aspect of each issue despite the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issues are as set forth on the title page. The reopened claim of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By rating action dated in June 2010, the RO determined that new and material evidence had not been received to reopen the previously denied claims of service connection for bilateral hearing loss and a nervous disorder; the Veteran did not appeal this decision and new and material evidence was not received within the applicable appeal period. 2. Evidence received since June 2010 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 3. Evidence received since June 2010 rating decision does not relate to unestablished facts necessary to substantiate the claim of service connection for a nervous disorder, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed June 2010 rating decision that determined new and material evidence had not been received to reopen the previously denied claims of service connection for bilateral hearing loss and a nervous disorder is final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 20.302 , 20.1103 (2014). 2. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2014). 3. New and material evidence not having been received, the claim of entitlement to service connection for a nervous disorder is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2014). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in March 2012, April 2012, and November 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. The Veteran was also notified of what evidence and information was necessary to reopen the previously denied claims and to establish entitlement to the underlying claims for the benefits sought on appeal. See Kent v. Nicholson, 20 Vet App 1 (2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated as to his bilateral hearing loss. In regard to the Veteran's claim to reopen his nervous disorder claim, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(4)(C)(iii). As will be discussed below in detail, the Veteran has not submitted new and material evidence sufficient to reopen his previously denied claim. Therefore, the Board finds that a medical examination is not necessary. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Bilateral Hearing Loss The Veteran asserts that he currently has bilateral hearing loss that is manifested as a result of his period of active service. Service connection for bilateral hearing loss was initially denied by the RO in August 1986. The Veteran appealed this decision to the Board, and the Board denied the claim in a decision dated in July 1987. In October 1996, April 2000, and June 2010, the RO determined that new and material evidence had not been received to reopen the claim of service connection for bilateral hearing loss. The Veteran did not appeal the respective decisions and new and material evidence was not received within the respective applicable appeal periods. See 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2014). Thus, the decisions are final. With regard to the finality of the prior rating decisions, the Board has also considered the applicability of 38 C.F.R. § 3.156(c), as the Veteran's service personnel records were received in April 2012. While such records describe the nature of the nature of the Veteran's service, to include information pertaining to his overseas service; awards, decorations, and campaigns; record of assignments and duties; and education and training, they do not address hearing loss, and do not include any reference to any in-service event, injury, or disease referable to the claim. Therefore, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and new and material evidence is required to reopen the Veteran's previously denied claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Evidence added to the record since the final June 2010 rating decision includes a VA examination report dated in March 2013 that considered a high degree of noise exposure of the Veteran during his period of active duty for training, but concluded that additional testing was required as the findings were inconsistent or unreliable. The above-cited evidence constitutes new and material evidence as it was not previously of record when the prior decision was made and demonstrates that the Veteran may have a bilateral hearing loss disability attributable to his period of service. The new evidence, when considered with the old, triggers VA's duty to provide additional development in this regard. Hence, it raises a reasonable possibility of substantiating the claim. See Shade. Accordingly, the claim of service connection for bilateral hearing loss is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Nervous Disorder The Veteran asserts that he currently has a nervous disorder that is manifested as a result of his period of active service. Service connection for a nervous disorder was initially denied by the RO in August 1989. In August 1991, April 2000, and June 2010, the RO determined that new and material evidence had not been received to reopen the claim of service connection for a nervous disorder. The Veteran did not appeal each respective decision, and new and material evidence was not received within the respective applicable appeal periods; therefore, each became final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2014). With regard to the finality of the prior rating decisions, the Board has again considered the applicability of 38 C.F.R. § 3.156(c), as the Veteran's service personnel records were received in April 2012. However, these records do not include any reference to any in-service event, injury, or disease referable to the nervous disorder claim. Therefore, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and new and material evidence is required to reopen the Veteran's previously denied claim. At the time of the June 2010 rating decision, the evidence of record included the Veteran's service treatment records which were negative of any complaints of or treatment for a nervous disorder. The medical evidence of record also included post-service treatment records from the Green Country Mental Health Services showing treatment for depression and hallucinations in 1990 and 1991. The Veteran was said to have been terminated as a patient because he would not return for treatments. There was no indication made that the depression or hallucinations were related to active service. Medical and administrative records from the Social Security Administration received in March 2010 show that the Veteran was awarded disability benefits for mental retardation and personality disorders. A private medical record from M. A. Glaze, M.D., dated in August 1986, shows that the Veteran was felt to exaggerate his symptoms resulting in an impression of conversion disorder. A private examination report from W. L. Smith, Ph.D., dated in December 1987, shows a diagnosis of moderate mental retardation with behavioral reaction as manifested by emotional lability and hypochondriacal complaints. A private medical record from B. Teegarden, D.O., dated in June 2006 showed diagnoses of depressive disorder, not otherwise specified; rule out borderline intellectual functioning; rule out intermittent explosive disorder; and rule out alcohol dependence. There was no indication made in any of the records that the diagnosed disorders were related to active service. The prior denial of service connection for a nervous disorder was continued in June 2010 as there was no evidence of a nervous disorder during active service, and no nexus relating the currently diagnosed disorders to active service. Evidence added to the record since the June 2010 rating decision includes VA outpatient treatment records dated from June 2013 to February 2014 in which the Veteran was diagnosed with psychosis, not otherwise specified; alcohol dependence; unspecified schizophrenia spectrum and other psychotic disorder. There is no indication made in any of the records that the diagnosed disorders are related to active service. The Board finds that new and material evidence has not been received to reopen the claim of entitlement to service connection for a nervous disorder. Following the June 2010 rating decision, the majority of the additional evidence is made up of additional treatment records showing post-service psychiatric treatment. Additional evidence that consists of records of post-service treatment that do not indicate that a condition is service-connected, is not new and material. See Cox v. Brown, 5 Vet. App. 95, 99 (1993). As noted above, the Veteran's service personnel records have been added to the record since the last final denial. While new, they are not material, as they are not supportive of any in-service event or nervous condition. With regard to any assertions of the Veteran, while presumed to be true, see Justus, they do not tend to show that the Veteran's nervous disorder was the result of his period of active service. The Veteran's assertions are generally duplicative of previous statements which were previously considered by the RO and, while new, they are not material. In sum, the Veteran has not presented any new evidence which bears directly and substantially upon the specific matter under consideration for which service connection for a nervous disorder may be granted. The newly submitted evidence is merely cumulative of previously submitted evidence and is not so significant that it must be addressed in order to fairly decide the merits of the claim. Accordingly, the previously denied claim of service connection for a nervous disorder may not be reopened, and the claim must be denied. ORDER New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted. New and material evidence not having been received, the petition to reopen the claim of entitlement to service connection for a nervous disorder is denied. REMAND Regarding the merits determination for hearing loss, the Board finds that the March 2013 opinion of the VA audiologist is inadequate. In this regard, in one portion of the examination report, the VA examiner refers to an audiogram dated "05-10-1912" at the office of D. Atwell, M.D., E.N.T., to an audiogram dated "04-17-1912" at Better Sound Hearing; and to an audiogram dated "May 10, 1012" from Dr. Atwell. Also, in light of invalid audiological testing results, the VA examiner also highly recommended further evaluation, or perhaps retesting by another audiologist. In light of the inaccurate references to prior audiograms and given the recommendation of the VA examiner, the Board finds that an additional VA examination is warranted. Moreover, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his bilateral hearing loss should also be obtained on remand. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA outpatient treatment records. 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of his asserted bilateral hearing loss. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right and/or left ear hearing loss disability had its onset during the Veteran's period of active service. Regarding the basis for the opinion, the examiner must comment on the likelihood that the asserted incidents of loud noise experienced during service resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift during service. If the examiner finds auditory hair cell damage to be a likely result of the in-service noise exposure, then the examiner shall comment on the likelihood that such damaged auditory hair cells would result in a greater permanent hearing loss than otherwise would be manifest. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects any reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for bilateral hearing loss in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so and what if any additional evidence would be necessary before an opinion could be rendered must be provided. A complete rational for each opinion given is required. 3. Then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran 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). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs