Citation Nr: 1600981	
Decision Date: 01/11/16    Archive Date: 01/21/16

DOCKET NO.  14-44 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability. 

2.  Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder, depression, bipolar disorder, and alcohol abuse.

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for tinnitus. 


ATTORNEY FOR THE BOARD

Ashley Castillo, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1967 to April 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

The claim for service connection for an acquired psychiatric disability has been recharacterized as reflected on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record).  Additionally, the Board finds that the nervous disorder claimed and denied previously in April and September 1985 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 1985.  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).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an April 1985 rating decision and September 1985 confirmed rating decision, the RO denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disability (then claimed and characterized as a nervous condition).  The Veteran did not appeal these decisions, and new and material evidence was not received within one year of their issuance.

2.  Evidence received more than one year since the April and September 1985 rating decisions relates to an unestablished fact that raises a reasonable possibility of substantiating the claim.

3.  Bilateral hearing loss did not have its clinical onset in service and is not otherwise related to active duty; bilateral hearing loss was not exhibited within the first post service year.

4.  Tinnitus did not have its clinical onset in service and is not otherwise related to active duty.


CONCLUSIONS OF LAW

1.  The April and September 1985 rating decisions that denied the claim of entitlement to service connection for an acquired psychiatric disability are final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015).

2.  New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  The criteria for entitlement to service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015).
4.  The criteria for entitlement to service connection for tinnitus are not met.  38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assist Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice 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; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Further, VA must notify the claimant that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. Ap. 473 (2006).

As the Board has determined that new and material evidence has been submitted to reopen the claim of service connection for an acquired psychiatric disability, no further discussion of VCAA compliance is required with respect to that claim.

With regard to the issue of entitlement to service connection for bilateral hearing loss and tinnitus, a pre-decisional notice letter dated in April 2014 complied with VA's duty to notify.  Specifically, the letter apprised the Veteran of the evidentiary requirements for service connection, the division of responsibility between the Veteran and VA with regard to obtaining evidence, and the process by which disability ratings and effective dates are assigned.  Thus, the duty to notify is met.

Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, as well as VA and private treatment records.  He was afforded a VA examination May 2014.  The May 2014 VA examiner reviewed the claims file, considering the Veteran's STRs, post-service medical records and specific findings from the Veteran's examination.  Lay statements of the Veteran were noted and considered, and the examiner provided a rationale for all findings made, relying on and citing to the records reviewed.  The Board accordingly finds that the May 2014 VA opinion is adequate to decide the claim.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  Thus, the duty to assist is also met. 

I.  New and Material Evidence

The Veteran's original claim of service connection for an acquired psychiatric disability, then claimed as a nervous condition, was denied in an April 1985 rating decision.  After additional evidence was associated with the record, the RO confirmed the prior denial of his claim in a September 1985 rating decision on the basis that his acquired psychiatric disability was not caused by his military service.  The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period.  Accordingly, the April and September 1985 rating decisions are final as to the evidence then of record, and are not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.

The claim may be reopened if new and material evidence is submitted.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the 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).  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 relevant evidence of record at the time of the April and September 1985 rating decisions included the Veteran's STRs, military personnel records, a February 1985 VA psychiatric examination report, a February1985 VA examination report, and the Veteran's statements.  

Relevant evidence received more than one year since the September 1985 rating decision includes a May 2013 statement from  N.A.O. Valentin, M.D., suggesting that the Veteran's acquired psychiatric disability is related to his military service; private psychiatric treatment records dated from March 2013 to May 2013, which show new psychiatric diagnoses; a May 2014 VA examination report addressing the etiology of the Veteran's psychiatric disability; and the Veteran's statements.  Such evidence constitutes new and material evidence, as it was not previously considered by decision makers and relates to unestablished facts that raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156.  Accordingly, the claim for service connection for an acquired psychiatric disability is reopened.


III.  Service Connection

The Veteran reports that his bilateral hearing loss and tinnitus are due to acoustic trauma sustained during military service.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303.  In order to establish service connection for the claimed disorder, generally there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).
For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  38 C.F.R. § 3.303(b).  The continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the purposes of applying the law 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, or 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 (2015).

In this case, the Veteran is currently diagnosed with tinnitus and bilateral hearing loss, as defined under 38 C.F.R. § 3.385.  See VA audiological examination report dated May 2014.  The first element of service connection is therefore satisfied.

With respect to in-service disease, there is no indication of hearing loss or tinnitus in the Veteran's STRs, including his September 1967 entrance examination report and his April 1968 separation examination report.  Instead, tinnitus and bilateral hearing loss, as defined under 38 C.F.R. § 3.385, are not demonstrated until May 2014, almost 40 years after service and well beyond the period for presumptive service connection for sensorineural hearing loss.  See 38 C.F.R. §§ 3.307, 3.309.  In this regard, the Board acknowledges that the Veteran has submitted a private audiogram report dated from October 2012.  See private audiogram report dated October 2012.  Although this record contains a result of puretone audiometry testing, it does not include a speech discrimination test (Maryland CNC test), and therefore cannot be considered in adjudicating whether the Veteran has demonstrated hearing impairment for VA purposes.  See 38 C.F.R. § 4.85.  In any event, even if the Board were to assume that this report reflects the presence of hearing loss for VA purposes beginning in October 2012, such assumption would not allow for presumptive service connection for bilateral hearing loss.

As for in-service injury, the Veteran asserts that he was exposed to gun fire and small arms noise while training at a shooting gallery during his military service.  To this end, the Veteran's DD Form 214 reveals that he is a recipient of a sharpshooter medal.  Therefore, the Board has no reason to dispute the Veteran's credible lay statement concerning in-service noise exposure, as a recipient of a sharpshooter medal he would reasonably include regular exposure to loud noises from gun fire and small arms.  38 U.S.C.A. § 1154(a).  Accordingly, the second element of service connection is met, and the crux of this case concerns the final element of service connection, a nexus to in-service noise exposure.

Regarding bilateral hearing loss, in the Veteran's favor is a May 2013 statement, in which Dr. Valentin opined that bilateral hearing loss was at least as likely related to in-service noise exposure.  She stated that the Veteran has a history of hearing loss.  Furthermore, he was exposed to high frequency arm fire noises during his military service and he was in an infantry unit, which "causes permanent damage in the inner structures of the ear, resulting in irreversible hearing loss."  

Against the claim for bilateral hearing loss is the report of a May 2014 VA audiologist, who reviewed the Veteran's entire claims folder, conceded in-service noise exposure, and opined that bilateral hearing loss was less likely than not related to in-service noise exposure.  The VA audiologist referenced the Veteran's clinically normal hearing at the time of his April 1968 service separation examination, and his "long history of occupational noise exposure as a truck driver and working at the airport that, along with the normal aging process, can account for the present hearing loss."  The examiner also noted that the Veteran had never visited a VA hospital with hearing loss complaints until that day.  In this regard, the Board acknowledges that the Veteran presented for a private hearing test in October 2012.  The Board finds that a reasonable inference from the examiner's observation is that the Veteran did not seek any treatment for hearing problems for many decades following service.  The Board emphasizes that it is allowed to draw reasonable inferences from the evidence.  Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating it is "the responsibility of the trier of fact fairly to . . . draw reasonable inferences from basic facts to ultimate facts"); Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.").

Regarding tinnitus, the May 2014 VA audiologist opined that the Veteran's tinnitus is less likely than not related to in-service noise exposure.  The VA audiologist instead indicated that tinnitus is associated with hearing loss and that it is a known symptom of hearing loss, and emphasized the lack of any tinnitus complaint or treatment prior to the examination. 

The Board affords Dr. Valentin's May 2013 opinion minimal probative value, as she did not address the pertinent service records, post-service occupational noise exposure or lack of hearing problems for decades following service.  See Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998).  

Contrarily, the May 2014 VA opinion that found no relationship between the Veteran's bilateral hearing loss and tinnitus and service is afforded substantial probative value, as it is based on a review and discussion of the pertinent evidence of record and the examiner's expertise as an audiologist, and provides a thorough rationale based on the salient facts in this case.  

The only other evidence of a nexus between the Veteran's hearing loss, tinnitus, and his military service consists of his own lay contentions.  To this end, while the Veteran is competent to discuss symptoms of decreased hearing and ringing in the ears that he has observed over the years, the Board finds that his assertions of a nexus between these symptoms and service are not credible, in light of: the lack of complaints of any hearing problems for more than 40 after service discharge; the Veteran's failure to mention hearing problems in unrelated claim for benefits filed in 1984; and the fact that he attributed his hearing loss to post-service occupational noise exposure in October 2012, prior to his current claim.  Accordingly, the Board finds the Veteran's contentions in this regard are of no probative value.

In sum, based on the totality of the record, the evidence weighing against the claim carries far more probative value than the evidence in favor of the claim.  For these reasons, the preponderance of the evidence is against the claim and service connection for bilateral hearing loss and tinnitus is not warranted.  As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application in the instant appeal.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disability is reopened.  To that extent only, the appeal is allowed.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.  


REMAND

Regarding the Veteran's reopened claim for an acquired psychiatric disability, while the Veteran received a VA examination in May 2014, the examiner's opinion is inadequate.  Specifically, the examiner raised the possibility of a pre-existing disability, in that he noted that bipolar disorder with an alcohol and drug abuse diagnosis begin during one's early teenage years "like in this case," but did not discuss whether bipolar disorder clearly and unmistakably pre-existed service (and, if so, whether said disability was clearly and unmistakably not aggravated beyond its natural progression during service).  Additionally, the examiner failed to discuss whether the Veteran has a disability resulting from a mental disorder superimposed upon his diagnosed personality disorder during service.  See 38 C.F.R. § 4.127.  Therefore, an addendum opinion is necessary.

Additionally, the below-listed outstanding records should be secured on remand, as well as the Veteran's complete service personnel records, based on his reports of frequent behavioral issues in service.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain the Veteran's service personnel records.

2.  With any necessary assistance from the Veteran, obtain complete records from:

(a) Rodriguez Army Health Clinic dated in 1968, See Veteran's claim dated November 1984;
(b) Fork Polk Army Hospital dated in 1968, Id;
(c) N.A.O. Valentin, M.D.; 
(d) D. Fernandez, M.D.;
(e) Dr. R. Normandia from April 2007 through November 2008 and from August 2012 to March 2013, See Dr. R. Normandia translated statement dated August 2013;and  
(f) any other pertinent provider identified by the Veteran.

3.  Obtain records of treatment that the Veteran may have received at any VA health care facility.  
4.  Following completion of the above-requested action, forward the claims file to the May 2015 VA examiner (or a similarly qualified VA psychiatrist, if unavailable) for preparation of an addendum opinion.  Additional examination of the Veteran is not necessary, unless otherwise indicated.

Based on review of the record, the examiner should respond to the following: 

(a) Does the evidence of record clearly and unmistakably (undebatably) show that the Veteran had an acquired psychiatric disorder other than a personality disorder that existed prior to his entry into active service?

(b) If pre-existence of an acquired psychiatric disorder other than a personality disorder is clearly shown, does the evidence of record clearly and unmistakably show that (i) such disorder did not worsen during active service, or that (ii) any increase in disability was due to the natural progression of the disease?  Please identify any such evidence with specificity.

(c) If the answer to either (a) or (b) for is no, is it at least as likely as not (50 percent probability or greater) that any currently diagnosed acquired psychiatric disorder other than a personality disorder, including bipolar disorder, generalized anxiety disorder and depression, had its onset during the Veteran's period of active service or is otherwise related to service?

(d) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran has an additional disability due to a disease or injury superimposed upon his diagnosed personality disorder as a result of his active service?

A complete rationale for all opinions that takes into account all lay and medical evidence must be provided.  If the examiner is unable to provide a requested opinion, he or she should explain in detail the reasons for the inability to render the opinion.

5.  Thereafter, readjudicate the issue on appeal.  

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 or by the United States Court of Appeals for Veterans Claims (Court) 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

Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b).

Department of Veterans Affairs