Citation Nr: 1751411	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  16-56 191	)	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 received to reopen the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and, if so, whether service connection is warranted. 

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for a heart disorder.

4. Entitlement to service connection for diabetes.

5. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities.

6. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities.

7. Entitlement to service connection for a prostate disorder. 

8. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy. 


ATTORNEY FOR THE BOARD

M. Lavan, Associate Counsel


INTRODUCTION

The Veteran served in the Army on active duty from January 1974 to March 1974 and from July 1978 to September 1984.  He also had multiple periods of ACDUTRA and/or INACDUTRA while in the Air Force Reserves from September 1984 to June 1995 and the Air Force National Guard from June 1995 to April 2003.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. 

The RO also decreased the rating for the Veteran's service-connected lumbar strain in the December 2015 rating decision, which the Veteran appealed.  The RO granted the appeal and restored the previous rating in a November 2016 rating decision.  Accordingly, this issue is no longer on appeal before the Board. 

The Board acknowledges that the Veteran filed a claim for a total disability rating based on individual unemployability (TDIU), which was denied in a June 2017 rating decision.  The Board finds that it does not have jurisdiction over the issue of entitlement to a TDIU at this time.  The Veteran has one year from June 2017 to file an appeal for his TDIU claim and submit evidence in support of it.  His TDIU claim is based on his lumbar strain, which was also denied in the June 2017 rating decision, and the Veteran still has one year from that date to appeal.  Accordingly, the Board will not take jurisdiction over the issue of a TDIU in this decision.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of service connection for an acquired psychiatric disorder, heart disorder, diabetes, peripheral neuropathy of the bilateral lower and upper extremities, and a prostate disorder, and entitlement to a higher rating for the left lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. The Veteran filed for service connection for PTSD in March 2010, which was denied in a May 2010 rating decision.  The Veteran did not file new and material evidence or a notice of disagreement within one year of the decision, and the decision became final.

2. Since then, new and material evidence supporting his claim for service connection for an acquired psychiatric disorder, to include PTSD, has been received.  

3. The Veteran does not have a hearing loss disability for VA compensation purposes.   


CONCLUSIONS OF LAW

1. The May 2010 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016).

2. The criteria to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, have been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

3. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.  

The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied.  Except as discussed herein, the Veteran has not raised issues with the duties to notify or assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist).  Moreover,  no new and material evidence was received after the October 2016 Statement of the Case with respect to the claim for service connection for bilateral hearing loss, so that issue can be decided at this time.   

The pertinent regulations were provided to the Veteran in the Statement of the Case and will not be repeated here.

Reopening Service Connection

Initially, the Board notes that the Veteran's claim for service connection for a psychiatric disorder has been denied in three rating decisions: May 2010, December 2014, and December 2015, the rating decision on appeal.  The Board finds, however, that the December 2014 rating decision was not final.  The Veteran submitted a statement in support of his claim for PTSD on December 23, 2014, detailing his alleged stressors, that was clearly not considered in the December 2014 rating decision.  As the statement constitutes new and material evidence, and the RO did not issue a subsequent rating decision considering it pursuant to 38 C.F.R. § 3.156(b), the Board finds that the claim on appeal is the Veteran's claim filed in July 2014.  The last final rating decision was therefore in May 2010, as the Veteran did not file new and material evidence or a notice of disagreement within one year of that decision.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

At the time of the May 2010 rating decision, the evidence before the RO consisted of service treatment records, VA medical records, and a formal finding of lack of information to corroborate the claimed stressors.  The RO denied the claim because service records and VA medical records did not demonstrate a current diagnosis, among other reasons. 
	
Since that time, the Veteran has been diagnosed with PTSD and a depressive disorder.  The Board thus finds that new evidence has been associated with the record and the claim to reopen is granted.  



Service Connection for Bilateral Hearing Loss

The Veteran contends that he has bilateral hearing loss related to service.   For the purposes of applying the laws 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.  

He underwent an audiological evaluation in August 2015 at VA, which showed normal hearing, except for very mild hearing loss at 4000 Hertz, and excellent speech recognition.    

In December 2015, the Veteran was afforded a VA audiological examination.  His right ear pure tone thresholds, in decibels, were as follows: 15 (500 Hertz); 10 (1000 Hertz); 15 (2000 Hertz); 15 (3000 Hertz); and 20 (4000 Hertz).  His left ear pure tone thresholds, in decibels, were as follows: 25 (500 Hertz); 25 (1000 Hertz); 25 (2000 Hertz); 20 (3000 Hertz); and 20 (4000 Hertz).  His speech discrimination score was 100 percent in both ears.  The examiner concluded that the Veteran has normal hearing in both ears.  Subsequent VA medical records do not show hearing loss diagnosis or treatment.   

The medical evidence thus shows that the Veteran has normal hearing bilaterally.  While the last examination took place almost two years ago, there is no medical or lay evidence indicating that his hearing acuity has worsened.  

Because the evidence shows that the Veteran does not have a hearing loss disability, service connection must be denied.  As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt standard does not apply.  




ORDER

The claim to reopen service connection for an acquired psychiatric disorder, to include PTSD, is granted.

Service connection for bilateral hearing loss is denied. 


REMAND

The Veteran contends that he has PTSD due to service in the Middle East and Columbia, during which he removed the bodies of dead soldiers after skirmishes with the enemy.  See, e.g., April 2017 VA treatment record.  He has not, however, provided any details of his service to the RO.  In December 2014, VA determined that there was a lack of information required to corroborate the Veteran's claimed stressors.  The Board finds, however, that sufficient information is associated with the claims file that necessitates submitting a request to JSRRC to assist in corroborating the Veteran's claims.  An October 2015 Information Report shows that the Veteran had "hostile fire/imminent danger pay" from April 1, 2001 to April 30, 2001.  The Veteran's vaccination records show an entry for Southwest Asia in January 2001, and a consultation report concerning fitness for TDY that same month, which notes the location is classified.  Accordingly, this information is sufficiently specific for a records search.  However, the Veteran is strongly advised that if he wishes VA's assistance in verifying his stressors, he must provide additional information as to when and where the alleged incidents occurred.  There is currently no information in his file documenting locations or dates of his purported foreign service in the Middle East or Columbia.

Additionally, April 2017 VA medical records also show he has been diagnosed with a depressive disorder, and that the physician discussed interaction among psychiatric disorders and chronic medical illnesses and associated disabilities after this diagnosis.  The Board finds that this triggers VA's duty to provide an examination to assess whether the Veteran's depressive disorder is caused or aggravated by his service-connected disabilities.  

Furthermore, the Veteran's private physician submitted a medical opinion in June 2015 relating the Veteran's disorders to service.  This opinion is not sufficient to grant these claims as there is absolutely no rationale as to how or why these conditions are related to service.  However, there are no VA medical examinations or opinions for the heart, prostate, neuropathy, and diabetes claims, and the private opinion triggers VA's duty to assist and a remand is necessary to obtain medical opinions.     

The Board notes that VA medical records reflect that the Veteran primarily, if not exclusively, receives private treatment for his prostate disorders.  The Board strongly recommends that the Veteran authorize VA to access these records or submit these records to VA for consideration. 

Finally, new and material evidence regarding the severity of the Veteran's left lower extremity radiculopathy was received following the October 2016 Statement of the Case.  Specifically, a VA spine examination, which assessed the severity of his radiculopathy, and translated physical therapy records were associated with the claims file in May 2017 and August 2017, respectively.  VA notified the Veteran that he had 45 days to waive initial AOJ consideration of the new and material evidence but he did not respond.  A remand is therefore necessary for AOJ consideration of this evidence. 

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. Contact the Veteran and ask him to provide the releases necessary for VA to secure private treatment records related to his heart, prostate, diabetes, and neuropathy disorders.  Notify him that, in the alternative, he can submit such records to VA. 

2. Contact the JSRRC and request the Veteran's unit records for January and April 2001, while he was in the Air Force National Guard of Puerto Rico.  His unit was the 156 SVF (Services Flight), stationed at Muņiz Air National Guard Base, in Carolina, Puerto Rico. 

3. Then, schedule the Veteran for a psychiatric examination with a VA psychologist or psychiatrist. The examiner must review the claims file and should note that review in the report. The examiner should provide the rationale for all opinions, citing to supporting clinical data as appropriate.  Based on a review of the record and examination of the Veteran, the examiner should respond to the following:

a. Determine whether the Veteran has a current mental health disorder, to include depressive disorder and PTSD.  

b. If a diagnosis of PTSD is warranted, is it at least as likely as not (50 percent or greater probability) that PTSD is related to service.

c. For any other psychiatric diagnosis rendered, is it at least as likely as not (50 percent or greater probability) that psychiatric disability is related to service or any event, injury, or disease during service?

d. For any other psychiatric diagnosis found, is it at least as likely as not (50 percent or greater probability) that psychiatric disability is caused by or aggravated by the Veteran's service-connected disabilities? Please address causation and aggravation separately.  

4. Forward the Veteran's claims file to an appropriate medical examiner to assess the relationship, if any, between the Veteran's service and heart, prostate, diabetes, and neuropathy disorders.  An in-person examination is not necessary unless otherwise determined by the examiner.   After a review of the claims file, including the June 2015 private physician statement, the examiner should respond to the following questions:

a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's heart disorder is related to service or any event, injury, or disease during service?

b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's prostate disorder, to include prostate cancer or benign prostatic hyperplasia, is related to service or any event, injury, or disease during service?

c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes is related to service or any event, injury, or disease during service?

d. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity neuropathy disorder is related to service or any event, injury, or disease during service?

e. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral upper extremity neuropathy disorder is related to service or any event, injury, or disease during service?

The examiner must provide a rationale explaining his conclusions.

5. When the development requested above is completed, the AOJ should review the record and consider all the available evidence, arrange for any further development deemed necessary, and readjudicate the issues remaining on appeal.  If any claim on appeal remains denied, the Veteran and his representative, if any, should be furnished a Supplemental Statement of the Case and afforded opportunity to respond. This case should then be returned to the Board, appropriate.

The appellant 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).


______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs