Citation Nr: 1752610 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for any acquired psychiatric disorder, to include obsessive compulsive disorder (OCD) and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the February 2013 decision, the RO denied service connection for prostate cancer. Upon review of the record, it is unclear whether the Veteran timely appealed the denial when he raised the fact that his prostate cancer was diagnosed by the Philadelphia VA Medical Center in his December 2013 Appeal to the Board. Therefore, the Board refers this claim to the AOJ for clarification and appropriate action. 38 C.F.R. § 19.9(c). The issue of service connection for any acquired psychiatric disorder, to include OCD and PTSD, 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 a May 2003 rating decision, service connection for tinnitus was denied; the Veteran did not appeal the decision. 2. The evidence received since the May 2003 rating decision raises a reasonable possibility of substantiating the service connection claim for tinnitus. 3. The Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. The May 2003 rating decision that denied the service connection claim for tinnitus is final. 38 U.S.C. § 7105(c) (2012), 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the favorable decision herein as to the issues on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. II. New and Material Evidence for Tinnitus Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993). In the May 2003 rating decision, the Veteran was denied service connection for tinnitus, as there weren't any relevant treatment records showing complaints, treatment, or diagnosis of tinnitus while the Veteran was on active duty. In addition, VA treatment records did not show that the Veteran complained or received treatment for tinnitus. The RO therefore denied service connection since it was not shown that tinnitus was caused by or occurred in service. The Veteran did not appeal and the decision became final. The RO received the Veteran's petition to reopen the tinnitus claim in March 2011. The RO declined to reopen the claim in the February 2013 rating decision and this appeal ensued. The Board must determine whether new and material evidence has been received subsequent to the May 2003 rating decision to reopen the claim. The Veteran's VA treatment records show that in January 2011, the Veteran presented at the York VA Community Based Outpatient Clinic (CBOC), complaining of increased ringing and tingling in his left ear and that it had been getting worse lately. The Veteran declined an appointment due to other obligations, but stated he would make an appointment with his primary care physician to discuss. See Medical Treatment Record - Government Facility, dated August 22, 2011. In February 2013, the Veteran submitted a statement in which he described an incident during hand grenade training. During the training, his trench partner dropped her grenade. The Veteran picked up the grenade and threw it up in the air, where it exploded right above their heads. The Veteran stated that following the incident he had ringing in his ears, he could barely hear, and had a bad headache. The Veteran reported that he was fine because he did not want his drill sergeants to think he was a wimp. The Veteran stated that the ringing in his ears continued for many years afterward and his hearing has gotten worse. The Board finds the newly received VA treatment records are material in that it relates to the unestablished element of a present disability, and the newly received statement from the Veteran is material in that it relates to the unestablished element of an in-service incurrence or aggravation of a disease or injury. The Veteran is competent to report ringing in his ears. For VA purposes, tinnitus is the type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, the Veteran's Form DD-214 notes that the Veteran is a hand grenade expert, which adds credibility to the Veteran's February 2013 statement. Therefore, the petition to reopen the tinnitus claim is granted. III. Service Connection for Tinnitus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004)). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. §§ 1111, 1113 (2012); 38 C.F.R. § 3.304(b) (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As stated above, new and material evidence was submitted and the claim for service connection for tinnitus is reopened. The Veteran's VA treatment records have a note that in January 2011, the Veteran went to the York CBOC. The Veteran complained of increased ringing and tingling in his left ear due to a grenade going off near him years ago, and that lately it had been getting worse. Although the Veteran was offered an appointment, he declined. The Veteran filed a statement in February 2013 in which he described an incident during grenade certification. According to the Veteran, his trench partner dropped an active grenade in their trench which the Veteran immediately picked up and threw up in the air, the grenade detonating above them. When the drill sergeants checked to see if they were all right, the Veteran told them yes, even though he had ringing in his ears, could barely hear, and had a bad headache. The Veteran stated he had ringing in his ears for many years afterward and his hearing has gotten worse. As to a current diagnosis, the evidence does not show that the Veteran suffers from tinnitus. However, the Veteran is competent to report ringing in his ears. For VA purposes, tinnitus is the type of disorder associated with symptoms capable of lay observation. Charles, 16 Vet. App. at 374. As to an in-service injury, the Board acknowledges that the Veteran's service treatment records cannot be located by the VA. However, the Veteran's Form DD-214 states that the Veteran received an expert citation in hand grenades, which adds credibility to the Veteran's February 2013 statement. The Board therefore concedes that the Veteran's allegation of in-service noise exposure is credible and consistent with the circumstances of his military service. Turning to the question of a present disability and the relationship between the disability and in-service injury, the Board notes that the Veteran was never scheduled for a VA examination and there is no nexus opinion in the medical records. However, the Veteran is competent to report the events that occurred in service, as well as the onset and nature of his tinnitus symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In the instant case, the Veteran has consistently asserted that this ringing in his ears began in service and has continued ever since that time. The Veteran is also competent to testify about observable symptoms or injury residuals. Thus, the Veteran is competent to state that his tinnitus began during service, and that he has continued to experience tinnitus since service to the present. The Board finds that there is sufficient persuasive evidence of record to establish the presence of tinnitus and likely continuity of symptoms from the time of service until the present. 38 C.F.R. § 3.303(b). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Here, the Board finds that the Veteran's assertions regarding the onset of his tinnitus and continuity of symptoms since service are credible. As noted above, the Veteran has confirmed in-service noise exposure, and his description of an in-service noise exposure is consistent with the circumstances of his service as documented by his Form DD-214. He has consistently stated that he experienced tinnitus during service and experiences it today, and there is no persuasive evidence of record indicating that the Veteran's statements are not credible. In sum, the Veteran has provided competent and credible evidence that he has had continuous symptoms of tinnitus since his discharge from active duty service, and the Board finds no reason to question the veracity of such statements. Charles, 16 Vet. App. 370; Hayes v. Brown, 5 Vet. App. 60 (1993). These statements, when viewed in relation to the Veteran's noise exposure in service, are entitled to significant probative weight, and thus, are sufficient to establish the presence of tinnitus and a likely continuity of symptomatology from service to the present. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for tinnitus are met. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus and the claim to reopen is granted. Service connection for tinnitus is granted. REMAND The Veteran seeks service connection for an acquired psychiatric disorder, to include OCD and PTSD, while in active service. The Veteran's record contains competent evidence of current acquired psychiatric disorders, with diagnoses for OCD and PTSD in his VA treatment records. In the February 2013 statement, the Veteran identified three incidents that he claimed as stressors during his time in service, which established that an event, injury, or disease occurred in service. This evidence indicates that the Veteran's psychiatric disorders may be associated with his service, but there is insufficient competent medical evidence on file for the Board to make a decision on the claim. The Board finds that the "low threshold" standard as to when an examination to secure a nexus opinion is required is met; development for such an examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding treatment records for any acquired psychiatric disorders, including OCD and PTSD, that are not currently of record. All records/responses must be associated with the electronic claims file. 2. After completing the above, schedule the Veteran for a VA examination with an appropriately qualified examiner to determine the nature and etiology of any acquired psychiatric condition, to include OCD and PTSD, present during the appeal period. The entire claims file, including a copy of this remand, should be made available to, and be reviewed by, the VA examiner. Based upon a review of the relevant evidence of record, the VA examiner is asked to identify the current psychiatric diagnosis(es) for the Veteran. The VA examiner is then specifically requested to offer the following opinions: a. Does the Veteran meet the criteria for a diagnosis for PTSD? i. If a diagnosis of PTSD is provided, is it at least as likely as not (a 50 percent probability or higher) that the Veteran's PTSD had its onset during service, or is otherwise related to active service? ii. If the Veteran fails to meet the criteria for a diagnosis of PTSD under the DSM-5, the VA examiner should specifically identify which portion(s) of the criteria the Veteran failed to satisfy. b. Regarding any other psychiatric diagnoses, including OCD, is it at least as likely as not (a 50 percent probability or higher) that the Veteran's acquired psychiatric disorder had its onset during service, or is otherwise related to active service? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should re-adjudicate the Veteran's claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claim folder should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. §§ 5109B, 7112 (West 2012). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs