Citation Nr: 1753760	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-36 445	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss.

2.  Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU).  

3.  Whether new and material evidence has been received to reopen a claim for service connection for vertigo (claimed as loss of balance and dizziness), and if so, whether service connection is warranted.

4.  Entitlement to a disability rating in excess of 30 percent for an unspecified depressive disorder.  


REPRESENTATION

Veteran represented by:	Melody F. Everett, Attorney


ATTORNEY FOR THE BOARD

C. Mukherjee, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1954 to December 1957.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2012 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

Aside from the reopening action described below, he appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required. 


FINDINGS OF FACT

1.  An October 2007 rating decision denied a claim for service connection for vertigo. 

2.  No notice of disagreement (NOD) was filed and no further evidence was added to the claims file for one year after the October 2007 rating decision was mailed.

3.  Since the October 2007 rating decision, the Veteran has submitted evidence in support of his claim for service connection for vertigo which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board.

CONCLUSIONS OF LAW

1.  The original October 2007 rating decision denying service connection for the Veteran's vertigo is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2.  New and material evidence has been received to reopen the Veteran's claim for service connection for vertigo.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

Legal Criteria and Analysis

Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C.A. §§ 7104, 7105.  However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  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.  Id.  In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).

If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512.  

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).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Shade, 24 Vet. App. at 118.

The Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996).  If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512.  Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Id. at 513.

The Veteran's claim for service connection for vertigo was denied in an October 2007 rating decision based on a finding that there was no evidence his vertigo was related to service or due to his service-connected bilateral hearing loss.  The Veteran did not file a notice of disagreement with this rating decision, nor did he submit any new and material evidence within a year following the decision; therefore, the decision became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).

In June 2014, the Veteran submitted a request to reopen his claim for entitlement to service connection for vertigo.  The RO denied reopening the claim in a November 2014 rating decision on the basis that no additional evidence had been received to show that the Veteran's vertigo was due to service or his service-connected bilateral hearing loss.  

The Board finds that evidence has been received to reopen the Veteran's claim for service connection for vertigo.  As noted above, for a claim to be reopened from a final, unappealed, decision, new and material evidence must be provided.  38 C.F.R. § 3.156(a).  Review of the record shows that the Veteran submitted evidence in May 2012 that indicates that the Veteran's vertigo and dizziness may be related to his hearing.  See May 2012 R.E.T. Letter.  This evidence is both new and material to the Veteran's claim for service connection for vertigo.  

This evidence was not before the RO in October 2007 and it is not cumulative or redundant evidence then of record.  It raises a reasonable possibility of substantiating the Veteran's claim, and the United States Court of Appeals for Veterans Claims has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  

Accordingly, the Board finds that new and material evidence has been added to the record and the claim must be reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  The merits of the reopened claim will be addressed in the REMAND section of this decision.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for the Veteran's vertigo is reopened, and to that extent only, the appeal is granted.


REMAND

The Board finds that further development is necessary prior to adjudication of the Veteran's claims.

Bilateral Hearing Loss and Unspecified Depressive Disorder

The Veteran was last examined for his bilateral hearing loss in June 2014 and for his unspecified depressive disorder in August 2014.  While the mere passage of time is not a basis for requiring a new examination, the Veteran and his wife have submitted evidence indicating that both of these disabilities have worsened.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Significantly, in October 2017, the Veteran stated that his depression had worsened over the past few months and was becoming almost unbearable.  His wife also submitted a statement in October 2017 that the Veteran's hearing was getting "worse and worse."  Both of these statements indicate a worsening of the disabilities.  These statements are also corroborated by an October 2017 letter from Dr. C.J.M., the Veteran's treating physician since 2009.  Therefore, the Board also finds that a remand is necessary to assess the current severity of the Veteran's service-connected bilateral hearing loss and unspecified depressive disorder.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of a Veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination-particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).

Vertigo

Regarding the Veteran's claim for service connection for vertigo, to include as secondary to his service-connected bilateral hearing loss, the Board finds that the most recent June 2007 VA examination is inadequate for adjudication purposes.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4) (2016).  The examiner indicated that it is less likely than not that the Veteran's vertigo is caused by or a result of his service-connected bilateral hearing loss.  However, the examiner did not address whether the Veteran's vertigo is aggravated by his bilateral hearing loss, and therefore the opinion is inadequate.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995).  Based on the foregoing, the Board finds that a supplemental opinion for secondary service connection is warranted.  

TDIU

In light of Rice v. Shinseki, 22 Vet. App. 447 (2009), and the remand of the claims for higher ratings for bilateral hearing loss and an unspecified depressive disorder, the TDIU rating issue must be remanded because the claims are inextricably intertwined and must be considered together.  Therefore, a decision by the Board on the Veteran's TDIU rating claim would, at this point, be premature.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, 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 request authorization to obtain any outstanding records pertinent to his claim, including any private treatment records following proper VA procedures as listed in 38 C.F.R. § 3.159(c).

2.  After completing the requested development, arrange for the Veteran to undergo a VA audiological examination with the appropriate clinician to evaluate the nature and severity of his bilateral hearing loss.  A copy of this remand and all relevant medical records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies.  

In assessing the current nature and severity of the Veteran's bilateral hearing loss, the examiner is asked to address the extent to which the functional impairment caused by the Veteran's bilateral hearing loss alone impairs his ability to meet the demands of a job, whether sedentary or physical, and the timeframe in which such impairment arose.  All opinions and conclusions reached by the examiner should be thoroughly explained.

3.  Arrange for the Veteran to undergo a VA examination with the appropriate psychologist or psychiatrist to evaluate the nature and severity of his unspecified depressive disorder.  A copy of this remand and all relevant medical records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies.  

In assessing the current nature and severity of the Veteran's unspecified depressive disorder, the examiner is asked to address the extent to which the functional impairment caused by the Veteran's unspecified depressive disorder alone impairs his ability to meet the demands of a job, whether sedentary or physical, and the timeframe in which such impairment arose.  All opinions and conclusions reached by the examiner should be thoroughly explained.

4.  Obtain a supplemental opinion from an appropriate clinician to determine the nature and etiology of the Veteran's vertigo.  The entire claims file must be made available to the clinician, and the supplemental opinion should include discussion of the Veteran's documented medical history and assertions.  After reviewing the claims file and examining the Veteran, the examiner should answer the following questions:

a.)  Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's vertigo was caused by his bilateral hearing loss?

b.)  If bilateral hearing loss did not cause vertigo, is it at least as likely as not (a fifty percent probability or greater) that vertigo was aggravated (permanently worsened beyond its natural progression) by bilateral hearing loss?

If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of vertigo by the service-connected disability.

c.) If not, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's vertigo is otherwise related to his active duty service?

A complete rationale for any opinion provided is requested.  

5.  Finally, after completing the above actions, as well as any other development that may be warranted, the RO must readjudicate the Veteran's claims in light of all the evidence of record.  If any benefit on appeal remains 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 matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment.  The law requires that all issues 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 (2012).



______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs