Citation Nr: 1641470 Decision Date: 10/25/16 Archive Date: 11/08/16 DOCKET NO. 15-18 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for hypertension as secondary to service-connected disability. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from November 1977 to October 1980, with subsequent reserve service through July 1983. This matter comes before the Board of Veterans Appeals (Board) from an August 2014 rating decision in which the above Regional Office (RO) of the Department of Affairs (VA) denied service connection for posttraumatic stress disorder (PTSD). The Veteran subsequently indicated he did not want to appeal the PTSD claim, but rather he wanted to reopen the claim for service connection for PTSD. The Board notes, however, that the August 2014 rating decision was not final. Even though by January 2015 rating decision, the RO found that new and material evidence had been submitted to reopen the claim for service connection for PTSD, and then denied service connection for PTSD, the Board finds that the issue on appeal regarding PTSD is as set forth above. This matter also comes before the Board from a March 2015 rating decision in which the RO denied the claim for entitlement to service connection for hypertension. Initially, the Veteran presented personal testimony at two videoconference hearings at the RO, before two different Veterans Law Judges (VLJs), concerning several issues now before the Board. The first hearing, in July 2012, was held before another VLJ, and the issues addressed included whether new and material evidence had been submitted to reopen the claims of service connection for hearing loss and for hypertension, and entitlement to service connection for a left eye disorder. In an October 2014 decision, the Board denied the request to reopen the claim for service connection for hypertension, granted the request to reopen the claim for service connection for bilateral hearing loss, and remanded the claims for service connection for a left eye disorder and for bilateral hearing loss. The Veteran did not appeal the denial of the hypertension claim. The second hearing, in September 2015, was held before the undersigned VLJ. At that hearing, the issues addressed included the newly reopened claim for service connection for hearing loss, the claim for service connection for PTSD, the claim for service connection for a left eye disorder, and service connection for hypertension, as secondary to PTSD. Although the hearing noted the issue was one for service connection, rather than a claim to reopen, there is no prejudice to the Veteran, as the claim is reopened herein. A VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7102 (West 2014); 38 C.F.R. § 20.707 (2015). When two hearings have been held by different VLJs concerning the same issue, the law also requires that the Board assign a third VLJ to decide that issue. 38 U.S.C.A. § 7102; 38 C.F.R. § 20.707. An appellant must also be provided the opportunity for a hearing before all three VLJs involved in the panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Here, a June 2016 letter was sent to the Veteran notifying him that he had an opportunity for a third hearing before a third VLJ on the issues of entitlement to service connection for bilateral hearing loss and a left eye disorder. In June 2016, the Veteran responded that he wished to have a third hearing before a VLJ, in person, at his local Regional Office. The Board notes that the letter was erroneous; the only issue on which testimony was provided to both VLJs was the issue of service connection for a left eye disorder. The issue before the VLJ in 2012 was the issue of reopening the claim for service connection for hearing loss. Only the VLJ in 2015 took testimony on the issue of entitlement to service connection for that disability. Accordingly, the Veteran's appeal on the issue of service connection for a left eye disorder is addressed in a separate decision in which the claim is remanded for a hearing. With regard to the instant appeal, on the request to reopen the claim for service connection for hypertension as secondary to PTSD, the claim for service connection for PTSD, and the claim for service connection for bilateral hearing loss, testimony was taken by the undersigned VLJ only, thus those issues are properly addressed herein. The Board notes that there was no discussion at the July 2012 hearing of these three issues, thus, there is no prejudice to the Veteran in proceeding on the decision made herein by the undersigned. The issues of service connection for hypertension as secondary to PTSD, service connection for PTSD, and service connection for bilateral hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2014 Board decision denied the Veteran's claim of service connection for hypertension, essentially based on findings that post-service records did not show treatment or diagnosis of hypertension during service, nor was there competent medical evidence of record indicating that the Veteran's hypertension was related to service. The Veteran did not appeal this decision. 2. Evidence was received since the Board's October 2014 decision that is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for hypertension. CONCLUSION OF LAW Evidence has been received, since the final October 2014 Board decision, that is new and material as to the request to reopen the claim for service connection for hypertension; thus, that claim for service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) provisions with regard to the matter on appeal, but finds that, given the favorable action taken below, no further analysis of the development of the claim is needed. II. New and Material Evidence 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). For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. In determining whether the low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a January 1994 rating decision, the RO denied service connection for hypertension, finding that the disorder was not shown during service nor manifested to a compensable degree within one year of service discharge. In a January 2007 rating decision, the RO declined to reopen the claim for service connection, finding that the newly submitted evidence did not show any relationship to service. In an October 2014 decision, the Board declined to reopen the Veteran's claim of service connection for hypertension, essentially based on findings that post-service records did not show treatment or diagnosis of hypertension during service, nor was there competent medical evidence of record indicating that the Veteran's hypertension was related to service. The Veteran did not appeal this decision and it is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.100. The evidence of record at the time of the Board's October 2014 decision included service treatment records, which were negative for any finding of hypertension, and post-service medical records, which showed a diagnosis of hypertension in 1986. The evidence received since the October 2014 decision includes statements from the Veteran in which he has asserted that his hypertension may be related to PTSD. Additionally, a private medical statement dated in September 2015 indicated that the Veteran may have been seen for hypertension as early as 1984. The Board finds that new and material evidence has been presented. The evidence, including lay statements of a new theory and private medical evidence indicating possible continuous symptoms, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a nexus to service or another potentially service-connected disability. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. ORDER New and material evidence sufficient to reopen the previously denied claim for service connection for hypertension has been received; the appeal is granted to this extent only. REMAND With regard to the claim for service connection for PTSD, remand is required for an adequate examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Here, in a January 2015 VA examination, the examiner determined that, based on that day's evaluation, the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. The examiner noted that the Veteran reported some symptoms of trauma experiencing, hyperarousal, and cue avoidance, that could not be fully accounted for by a depression diagnosis, however, a diagnosis of PTS was not support in large part because of the Veteran's prominent depression and potential for symptom overlap between depression and PTSD. The examiner indicated that the Veteran's diagnosis using DSM-IV criteria would be anxiety disorder NOS (sub-syndromal PTSD). The examiner also provided a negative nexus opinion with an explanation regarding the Veteran's symptoms. Prior and subsequent VA treatment records, however, including in 2013, 2014, and in March 2015 and May 2015, however, show diagnoses and treatment for PTSD. In a letter dated in June 2014, a VA physician noted that the Veteran was being treated for PTSD and major depressive disorder with psychotic features, and indicated that it was impossible to predict the long term prognosis for the Veteran, but that PTSD and major depressive disorder with psychotic symptoms was often a chronic, lifelong condition. Notably, although the 2015 VA examination report contains a review of the Veteran's medical history and related records, the VA examiner failed to reconcile and/or address the presence of the diagnoses of PTSD in the VA treatment records. Therefore, a remand is necessary to obtain a VA addendum medical opinion regarding the Veteran's PTSD claim. With regard to the claim for service connection for hearing loss, remand is required for a new examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez, 22 Vet. App. at 302-04. The Veteran essentially contends that he currently has hearing loss due to noise exposure during service. He asserts that as a communications specialist in an artillery unit he was exposed to the firing of 105 Howitzer guns, with the use of ear protection, on firing ranges and during training exercises while setting up communications. On a December 2012 VA examination, audiological testing was conducted which showed pure tone thresholds, in the right ear, at 500, 1000, 2000, and 3000 Hertz, were: 30, 45, 45, 50, and 45, respectively, and in the left ear: 35, 40, 40, 40, and 40, respectively. Speech discrimination scores using the Maryland CNC word list were reported at 76 percent for the right ear and 72 percent for the left ear. The diagnosis was bilateral sensorineural hearing loss. The examiner indicated that he could not provide an opinion as to the etiology of any current disability because there were no entrance or separation examinations reports from service. The examiner also noted that on a VA examination in July 1993, the Veteran was seen and the results suggested normal hearing acuity bilaterally. On a November 2014 VA examination, audiological testing was conducted which showed pure tone thresholds, in the right ear, at 500, 1000, 2000, and 3000 Hertz, were: 25, 20, 25, 20, and 15, respectively, and in the left ear: 10, 20, 25, 20, and 15, respectively. Speech discrimination scores using the Maryland CNC word list were reported at 96 percent for the right ear and 94 percent for the left ear. The diagnoses included right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies, and left ear normal hearing. The examiner opined that the Veteran's right ear and left ear hearing losses were not caused by service, and for rationale noted there were no service audiograms present, but that based on normal thresholds obtained in a July 1993 VA examination, it was less likely as not that the Veteran sustained any permanent hearing loss due to military noise exposure. The examiner did not address the prior audiological findings. Based on the foregoing conflicting audiological findings, it is unclear whether the Veteran actually has (or had) a hearing loss disability (as defined in 38 C.F.R. §3.385) and if so, whether such is related to his noise exposure service. In that regard, there is a discrepancy in the audiometric findings reported in 2012 when compared with those findings provided in 2014, and the examiner in 2014 did not address or explain the discrepancy between the pure tone thresholds in 2012 and 2014. See 38 C.F.R. § 3.385. Accordingly, on remand, the Veteran is to be provided with a new VA audiological examination to determine whether he has had hearing loss in either ear, that meets the standard of 38 C.F.R. § 3.385 , at any time during the course of this appeal. The examiner must also provide an opinion as to whether any such hearing loss had onset in or is otherwise related to military service and an adequate rationale must be provided. The examiner should be advised that an adequate rationale must include discussion of the discrepancy between the VA audiometric findings in 2012 and 2014. With regard to the hypertension claim, remand is required as the issue is inextricably intertwined with the claim for service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). This claim is based on a theory of secondary service connection to PTSD, such claim is inextricably intertwined with the claim for service connection for PTSD as the outcome of the hypertension claim is dependent upon whether service connection is established for PTSD. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include any psychiatric treatment at the Tuscaloosa Mental Hospital. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his claimed PTSD from a VA examiner. The entire claims file should be made available to and be reviewed by the examiner who conducted the 2015 examination. If an examination is deemed necessary, or the 2015 examiner is not unavailable, a new examination shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the there is a diagnosis of PTSD since the 2014 claim by the Veteran. If not, the examiner must specifically address the prior diagnoses of record, to include those provided by the Veteran's treating provider. Second, if there is a diagnosis of PTSD, the examiner must provide an opinion whether PTSD can be related to the stressor or stressors 1) established as having occurred during active service and/or those 2) claimed by the Veteran, to include those involving the fear of a hostile military or terrorist activity. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors and the prior VA examinations. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate VA examination to determine the etiology of the claimed bilateral hearing loss. All pertinent symptomatology and findings must be reported in detail. All testing, to include an audiogram, must be performed. The Veteran's entire claims file and this remand must be made available and reviewed by an appropriate VA examiner. An explanation for all opinions expressed must be provided. First, the examiner must determine whether there is hearing loss for VA purposes. If the examiner determines that the Veteran does not currently have hearing loss in either ear, he or she should explain the discrepancy between the current audiometric findings and those in 2012 and 2014, and opine whether the Veteran had hearing loss, in either ear, for the purposes of 38 C.F.R. §3.385 at any time during the course of this appeal. If the examiner determines that any prior audiometric test results are invalid, the examiner should clearly so state and explain why. Second, if there is hearing loss for VA purposes, the examiner must render an opinion as to whether any current hearing loss is related to the Veteran's period of military service, or to any incident therein, to include as due to noise exposure. The examiner must address the prior VA examinations of record. The examiner is reminded that VA law and regulation does not preclude service connection for post-service hearing loss where hearing was within normal limits at the time of separation from service. It is requested that the examiner record a detailed history of in-service and post-service noise exposure. The examiner must indicate whether the type of hearing loss the Veteran has is the kind that is due to acoustic trauma, old age, infection, or some other cause. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had its onset in, or was otherwise caused by, the Veteran's military service. The examiner must specifically address the Veteran's assertions of an in-service blood pressure difficulties and symptoms thereafter. The examiner must also specifically address the 2015 letter submitted by a private physician. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension was caused or aggravated by his psychiatric disorders. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs