Citation Nr: 1753340 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-34 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include a disability manifested by substance abuse. 2. Entitlement to service connection for an acquired psychiatric disability, to include a disability manifested by substance abuse. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 4. Entitlement to service connection for tinnitus. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for residuals of a head injury. 8. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities (claimed as numbness/tingling of the bilateral feet). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and R.M. ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1968 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2012, February 2015 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2014, the RO issued a rating decision in which it denied service connection for unspecified personality disorder, claimed as depressive disorder and psychosis. The Board notes that substance abuse may be as symptom attributed to an acquired psychiatric disorder; therefore, an acquired psychiatric disability claim is part and parcel of a claim for substance abuse. In light of the evidence of record, the Board has recharacterized the acquired psychiatric disability claim more broadly as is reflected on the title page. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The newly reopened issue of entitlement to service connection for an acquired psychiatric disability, to include a disability manifested by substance abuse, and the issues of entitlement to service connection for bilateral hearing loss and residuals of a head injury addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in December 2005, the RO denied service connection for bilateral hearing loss, tinnitus and drug abuse. 2. Evidence received since December 2005 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability, to include a disability manifested by substance abuse. 3. Evidence received since the December 2005 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. 4. Resolving all doubt in the Veteran's favor, tinnitus is etiologically related to his period of active service. 5. Evidence received since the December 2005 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 6. Evidence shows that the Veteran's peripheral neuropathy of the bilateral lower extremities is caused by diabetes, which is not service-connected. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a an acquired psychiatric disability, to include a disability manifested by substance abuse. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (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 (a) (2017). 3. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 5. The criteria for entitlement to service connection for peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. As the applications to reopen the claims of entitlement to service connection for tinnitus, bilateral hearing loss and an acquired psychiatric disability, to include a disability manifested by substance abuse, and the claim for entitlement to service connection for tinnitus is being granted, discussion of the VCAA with regard to these claims is unnecessary. As to the remaining claim being decided herein, the requirements of the statutes and regulation have been met. In June 2015, the Veteran submitted his Fully Developed Claim Certification for his peripheral neuropathy of the bilateral lower extremities claim. Under the framework for a fully developed claim, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination as "necessary," may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection and of the veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The Board has obtained copies of the Veteran's service treatment and post-service VA treatment records. While a VA medical opinion was not obtained in this case for peripheral neuropathy of the bilateral lower extremities, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As discussed below, there is not competent evidence that indicates that this disability is attributable to service; instead, the competent evidence indicates that this disability is due to a non-service connected disability, diabetes. As such, VA's duty to provide an examination with an opinion is not triggered. See Waters, 601 F.3d 1274. Moreover, the July 2016 Board hearing was adequate as the VLJ who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). All necessary development has been accomplished, and therefore he Board will proceed to the merits of the claims being decided herein. New and Material Evidence Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence means existing 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 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; 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. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). All new and material evidence claims on appeal are service connection claims. Generally, for a successful claim, the record must have competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) between the current disability and the disease or injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's claims for service connection for bilateral hearing loss, tinnitus and drug abuse were denied in a December 2005 rating decision. Bilateral hearing loss and tinnitus were denied because the evidence did not show that hearing loss or tinnitus was incurred in or aggravated by service; and substance abuse was denied because the record did not show evidence of a disability that caused the Veteran's substance abuse. The evidence of record contained service treatment records, VA treatment records and private treatment records. The evidence received since the December 2005 rating decision consists of updated VA treatment records, a February 2015 VA audiological examination, at which the Veteran reported that he has experienced ringing in his ears since service; an October 2014 VA mental health examination, which shows that the Veteran was diagnosed with unspecified personality disorder; and lay statements, to include Board hearing testimony from the Veteran and his friend. During the July 2016 Board hearing, the Veteran reiterated that he experienced ringing in ears while in service. With respect to the substance abuse, the Veteran claimed that he began using drugs and alcohol while in service in order to cope with issues in service. He reported that depression "set in" and the substance abuse continued after separation of service. The Board finds that the newly submitted evidence raises the reasonable possibility of substantiating the claims on appeal. See Shade v. Shinseki, 24 Vet. App. 110 (2010). As new and material evidence has been submitted, the claims for service connection for tinnitus, bilateral hearing loss, an acquired psychiatric disability, to include a disability manifested by substance abuse are reopened. Merits of the Service Connection Claims As indicated above, service connection generally requires (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) between the current disability and the disease or injury incurred or aggravated during service. Tinnitus The Veteran contends that tinnitus resulted from exposure to acoustic trauma during active service. For the following reasons, the Board finds that service connection for tinnitus is established. He was assigned to an artillery and infantry unit and he was exposed to different types of weapons, generators and tanks. He testified that he experienced tinnitus while in service and continues to experience it "off and on." Although the February 2015 VA examiner opined that tinnitus is less likely caused by military noise exposure because no threshold shift occurred during service, the Board finds the Veteran's testimony regarding the onset of tinnitus persuasive. The Veteran is competent to testify as to the date of onset of his tinnitus symptoms, i.e., ringing in the ears. The Board finds the Veteran's statements as to the onset of his tinnitus to be competent and credible. (See July 2016 Hearing Transcript). Therefore, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is established. See 38 U.S.C.A. § 5107, 38 C.F.R. § 3.102. Peripheral Neuropathy of the Lower Extremities At the July 2016 Board hearing, the Veteran testified that while in service, his feet were crushed when a projectile fell on his feet. He indicated that the numbness in his feet was related to that incident. The Veteran's representative also noted that during training, the Veteran was on jump status and that may have triggered the numbness in the Veteran's legs. Service treatment records are silent for complaints, treatment and diagnoses of peripheral neuropathy of the lower extremities. Although the Veteran complained of "left foot pain with running" in June 1970, the diagnosis was left ankle pain. There is no evidence of complaints of numbness or tingling of the bilateral lower extremities. Post service treatment records are silent for complaints, treatment and diagnosis of peripheral neuropathy until the 2014 diagnosis of diabetic neuropathy. Multiple treatment records indicate that the Veteran has diabetic neuropathy described as mild neuropathy of the feet. The Board notes that the Veteran does indeed have peripheral neuropathy of the bilateral lower extremities. Therefore, the first element is established. However, service treatment records do not indicate treatment, complaints or a diagnosis of such in service. There is also no documented evidence of an in-service neurological injury. Therefore, the second element is not established. Moreover, the medical evidence shows that the Veteran's peripheral neuropathy is attributed to non-service-connected diabetes. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a finding that service connection is warranted for peripheral neuropathy of the bilateral lower extremities. First, no neurological conditions were diagnosed in service and other than a diagnosis of left ankle pain, no other complaints, treatment or diagnoses of a condition of the lower extremities is present in service. Clinical evaluation of the feet and neurologic system were normal on his separation examination. Second, the medical evidence shows that peripheral neuropathy is caused by diabetes, which is not service connected. Under these circumstances, the Board finds that service connection pursuant to 38 C.F.R. § 3.303 (a) must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received, the application to reopen a claim of service connection for an acquired psychiatric disability, to include a disability manifested by substance abuse is granted. As new and material evidence has been received, the application to reopen a claim of service connection for tinnitus is granted. Service connection for tinnitus is granted. As new and material evidence has been received, the application to reopen a claim of service connection for bilateral hearing loss is granted. Service connection for peripheral neuropathy of the lower extremities is denied. REMAND Remand is required for further development before the Board's adjudication of the remaining claims. Regarding the reopened claim for hearing loss, remand is required to afford the Veteran an adequate VA audiological examination and to obtain an adequate medical opinion. Although the Veteran was afforded a VA audiological examination in February 2015, the examiner's negative opinion based on the absence of an in-service threshold shift is inadequate as he solely relied on the absence a threshold shift at separation from service. Moreover, an opinion is necessary regarding the relationship, if any, between the current hearing loss disability and the service-connected tinnitus granted herein. As such, an additional VA examination must be provided on remand. Regarding the reopened claim for substance abuse, the Board notes that during the pendency of the appeal of this claim, service connection for unspecified personality disorder, claimed as depressive disorder and psychosis was denied. In Clemons v. Shinseki, 23 Vet. App (2009), the Court held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant. The Veteran has had multiple psychiatric diagnoses, to include personality disorder, depressive disorder, anxiety and psychosis. Additionally, the Veteran has received treatment for substance abuse, to include treatment with methadone. The Board finds that all mental health diagnoses should be considered as one issue (i.e. an acquired psychiatric disability as indicated on the title page). The Board notes that the Veteran was afforded a VA mental health examination in October 2014; however, the provided opinion is inadequate for multiple reasons. In this regard, the examiner determined that the Veteran's current symptoms of unspecified personality disorder are not associated with the in-service diagnosis of unspecified personality disorder because the disorder is "developmental in nature, often traceable back to adolescence or early adulthood, and therefore considered to preexist his military service." Although VA regulations provide that a personality disorder is considered a "defect" that is not a "disease" or "injury" within the meaning of applicable legislation for VA disability compensation purposes and; therefore, cannot be service connected (see 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 (2017), the provisions of 38 C.F.R. § 4.127 provide that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As the examiner did not address whether there is evidence of additional disability due to aggravation of the diagnosed personality disorder by a superimposed disease or injury, the opinion is not sufficient. Additionally, the examiner's opinion does not appear to be based on an accurate facts. In this regard, he noted that other than the July 1970 notations of nervousness and personality disorder after the Veteran received an Article 15, the STRs are negative for complaints, treatments or diagnosis of psychiatric disorders. However, there is also an August 1970 treatment record that indicates that the Veteran was a "patient with a known psychopathic personality." Moreover, the examiner indicated that the Veteran had no diagnosis of a traumatic brain injury, although the VA treatment records note "an old TBI", concussion, and a diagnosis for a brain disorder. Further, the examiner only noted that the Veteran was diagnosed with unspecified personality disorder and indicated that the Veteran did not meet the DSM-5 criteria for depression, anxiety or PTSD based on objective test results; however, the medical record is replete with diagnoses of, and treatment for, depression throughout the appeal period. Notably, two days before the examination, an October 2014 VA treatment record notes a diagnosis of improved depression; and three months before the examination, a July 2014 VA treatment record notes a diagnosis of depression. The examiner also failed to adequately consider the Veteran's in-service substance abuse. Although, the examiner noted the Veteran's report of "a lot of problems with his mood and the legal system when he was abusing drugs and alcohol", it does not appear that the examiner adequately considered the Veteran's in-service substance abuse (which is noted in his STRs) and its relation to any in-service and/or current psychiatric disorder. Upon remand, all psychiatric disorders diagnosed during the appeal period must be considered and discussed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (A current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). Regarding the residuals of a head injury, the Veteran discussed an in-service motor vehicle accident, in which he was thrown out of a van. He reported that a head injury may have occurred at that time. It is unclear whether the reported in-service head injury is related to any current residuals of a head injury, to include reported headaches. Also, as indicated above, the VA treatment records note "an old TBI", a previous concussion and a diagnosis of brain disorder. As the Veteran has not had a VA examination regarding this claim, upon remand the Veteran should be scheduled for one to determine the etiology of any residuals of a head injury. In light of the remand, updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Upon completion of directive 1, obtain an addendum opinion regarding the etiology of the Veteran's hearing loss. The claims file, to include a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. If deemed necessary by the examiner, afford the Veteran a VA examination for hearing loss. All indicated tests should be performed and all findings should be reported in detail. The examiner should address the following questions: a) Is the Veteran's bilateral hearing loss at least as likely as not incurred in service or is otherwise causally related to the Veteran's active service? b) It is at least as likely as not that the Veteran's bilateral hearing loss is due to, or aggravated by, his service-connected tinnitus? In particular, review the lay statements as they relate to the development of his bilateral hearing loss disability and provide information as to how the statements comport with generally accepted medical norms. The rationale for all opinions must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. 3. Upon completion of directive 1, schedule the Veteran for a VA psychiatric examination. The claims file, to include a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated tests should be performed and all findings should be reported in detail. With respect to each acquired psychiatric disability found to be present and/or diagnosed proximate to or during the pendency of the appeal, the examiner should offer an opinion on the following: Is it at least as likely as not that the acquired psychiatric disability was incurred in, caused by, or is otherwise related to, the Veteran's service? If any diagnosed psychiatric disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. If the Veteran is diagnosed with a personality disorder, the examiner should state whether it at least as likely as not, was subject to a superimposed injury or disease during service. If so, identify the additional acquired psychiatric disability that is superimposed upon the personality disorder. In providing this opinion, the examiner should address the diagnoses already of record, including depressive disorder and psychosis. The examiner is asked to offer an opinion even if the specific diagnosis has resolved (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim). If any previously rendered acquired psychiatric diagnosis was later corrected to reflect a more accurate diagnosis, the examiner should state the same. The examiner must also carefully consider the objective medical findings in the service treatment records and specifically address the in-service findings of psychopathic personality, anxiety, personality disorder, substance abuse, and any other character and behavior/personality disorders. A rationale for all opinions offered should be provided. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 4. Upon completion of directive 1, schedule the Veteran for a VA examination to determine the etiology of any residuals of a head injury. The claims file, to include a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated tests should be performed and all findings should be reported in detail. Upon examination of the record and the Veteran, the examiner should identify all any residuals of a head injury found to be present. Thereafter, the examiner is to provide an opinion to the following: Is it at least as likely as not that residuals of a head injury were incurred in, caused by, or otherwise related to, the Veteran's military service? A rationale for all opinions offered should be provided. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. If the Veteran is diagnosed with any residuals of a head injury, the examiner should also state whether the Veteran has any symptomatology from that head injury that is distinct and separable from any diagnosed psychiatric disorder(s). If so, the specific symptoms attributable only to the head injury should be noted. 5. Thereafter, readjudicate the issue on appeal. If any benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs