Citation Nr: 1628893 Decision Date: 07/20/16 Archive Date: 08/01/16 DOCKET NO. 15 07 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for Meniere's disease, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: National Organization American GI Forum ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from August 1979 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). The issue of service connection for tinnitus as secondary to hearing loss has been raised by the record during a January 2013 VA examination (See page 14), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for PTSD and Meniere's disease, on their merits, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's initial claim of service connection for PTSD was last denied in a June 2011 decision of the RO. 2. The evidence received since the June 2011 decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for PTSD. 3. The Veteran's initial claim of service connection for Meniere's disease was last denied in a June 2011 decision of the RO. 2. The evidence received since the June 2011 decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for Meniere's disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for PTSD. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107, 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 3.159, 3.312 (2015). 2. New and material evidence has been received to reopen the claim of service connection for Meniere's disease. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107, 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 3.159, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the issues of entitlement to service connection for PTSD and Meniere's disease are being reopened and are subject to additional development on remand, as will be described. Accordingly, the Board will not further address the extent to which VA has fulfilled its notification and assistance requirements for this issue. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2015). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court of Appeals for Veterans Claims (the Court) has stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In June 2011, the RO denied the Veteran's claim for service connection for PTSD and Meniere's disease, among other disabilities. The Veteran did not appeal this decision and the June 2011 letter became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). In order to reopen the claim, the Veteran must provide new and material evidence. In terms of PTSD, the RO denied the Veteran's claim in June 2011 because there was no evidence of a stressful incident in service that resulted in PTSD. The Veteran did not return the questionnaire regarding information regarding the Veteran's stressor and the evidence did not show that he served in combat. In terms of Meniere's disease, the RO denied the Veteran's claim for service connection in June 2011 because there was no opinion linking the Veteran's Meniere's disease to service or to a service-connected disability. Although an examination had been scheduled, the Veteran failed to appear. The Board's inquiry will be directed to the question of whether any additionally submitted [i.e. after June 2011] evidence bears directly and substantially upon these matters. Since June 2011, VA treatment records have been received that show a diagnosis of PTSD. A March 2012 treatment record also notes that the Veteran reported that he was "kind of" in combat in Iran in 1980 during the Iranian hostage crisis. He explained that this was a classified trip. Although he had referenced being in Iran in a prior VA treatment record, he had not explained that it was a classified trip. Since June 2011, the Veteran has been provided a VA examination for Meniere's disease in January 2013. Although the examiner opined that it was less likely than not that the Veteran's Meniere's disease was related to his military service, the examiner explained that the Veteran's Meniere's disease was genetic in origin. As the claims file shows that the Veteran's Meniere's disease is genetic, further development may reveal that Meniere's disease was aggravated during service. In addition, the Veteran reported during the examination that his symptoms began during service. Furthermore, the Veteran has most recently asserted in his Form 9 that his Meniere's disease was caused by eating chocolate during service, specifically John Wayne Bars, as it was a main food source during service. The language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). In this connection, the Board finds that this evidence constitutes new and material evidence for the issues of PTSD and Meniere's disease. For the sole purpose of establishing whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claims for service connection. See Justus, supra. This new evidence relates to a fact or facts necessary to substantiate the Veteran's service-connection claim for PTSD and Meniere's disease, and presents a reasonable possibility of substantiating it. See 38 C.F.R. § 3.156 (2015). Accordingly, the Board finds that there is sufficient new and material evidence to reopen the Veteran's claim. The United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For reasons which will be expressed below, the Board finds that additional development is required before the claims may be adjudicated on the merits. ORDER As new and material evidence has been received to reopen the claim of service connection for PTSD, the appeal to this extent is granted. As new and material evidence has been received to reopen the claim of service connection for Meniere's disease, the appeal to this extent is granted. REMAND The Board finds that further development is needed as to both issues on appeal. As to the issue of PTSD, the Board finds that the Veteran should be given one last opportunity to clarify the stressful incident that occurred during service that caused his PTSD. VA treatment records note that he was a combat engineer in the military and that a fuel truck ran over his feet during service causing a crushing injury that resulted in multiple foot surgeries. See November 2010 VA treatment record. The Veteran's service treatment records note that he reported a 1979 motorcycle accident that injured both feet. The Veteran's service treatment records also show that he was treated for foot problems many times during service. After the Veteran provides further information, the RO should further develop the Veteran's claim as needed. As to the issue of Meniere's disease, during the January 2013 VA examination, the Veteran reported that he first began to have symptoms of Meniere's disease in his early 20s during his military service. He reported that during service, he had dizziness, ringing, temporary worsening of hearing loss and nausea. The January 2013 VA examiner opined that the Veteran's Meniere's disease was genetic in origin and that it was as least as likely as not a continuation of the Veteran's complaints during his service. Despite this, the examiner also opined that the Veteran's Meniere's disease was less likely incurred in or caused by the Veteran's service. An opinion is needed as to whether it is clear and unmistakable that Meniere's disease pre-existed active service. If so, an opinion is needed as to whether it is clear and unmistakable that the pre-existing Meniere's disease was not aggravated (i.e. permanently worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress of the disease. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since April 2014 and associate them with the claims file. 2. Provide the Veteran notice of how he can substantiate a claim for posttraumatic stress disorder. Ask the Veteran to provide details of the stressful incident that caused his PTSD, including the date and place of the incident. 3. If the Veteran responds with a description of a stressor, attempt to verify the stressor. 4. If, but only if the stressor is verified, provide the Veteran an examination for his PTSD to determine whether he has a diagnosis of PTSD which is related to his claimed stressful incident (to include fear of hostile military or terrorist activity). If PTSD is not diagnosed, the examiner should explain why the diagnosis is not supported. The claims folders must be made available to and reviewed by the examiner. All indicated studies should be performed. The question is whether his stressor supports the diagnosis of PTSD. If PTSD is not diagnosed, the examiner should explain why the diagnosis is not supported. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A complete rationale for all opinions expressed should be provided in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. After item #1 has been completed, return the claims file to the provider who conducted the January 2013 examination, if available, for an addendum addressing the Veteran's claimed Meniere's disease. The examiner should be requested to review the file and the examination report. Upon completion of that review, the examiner should provide the following opinions: (a) Explain whether it is clear and unmistakable (obvious, manifest, and undebatable) that Meniere's disease pre-existed active service. (b) State whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing Meniere's disease WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. (c) If any responses above are negative, provide an opinion as to whether the current Meniere's disease, at least as likely as not (a probability of 50 percent or greater) began in or is related to active service. The examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that the Veteran's reports must be considered. The rationale for any opinions should also be provided. The examiner's attention is directed to the Veteran's statement in the February 2015 Form 9 that his Meniere's disease was caused by eating chocolate during service. A discussion of the complete rationale for all opinions expressed should be included in the examination report. An examination should only be provided to the Veteran if the examiner feels that another examination is necessary in order to provide the requested opinion. If the January 2013 VA examiner is not available, another competent professional may provide the opinion after reviewing the January 2013 examination report and the claims file. If the examiner is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 7. Upon completion of any examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 8. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs