Citation Nr: 1800693 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-31 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include mood disorder, anxiety, bipolar disorder and posttraumatic stress disorder (PTSD) (psychiatric disability). 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic sinusitis. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for a psychiatric disability, to include mood disorder, anxiety, bipolar disorder, schizophrenia and PTSD. 8. Entitlement to service connection for chronic sinusitis. 9. Entitlement to service connection for a right leg disability. 10. Entitlement to service connection for a right ankle disability. 11. Entitlement to service connection for a blood disorder. 12. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Penelope Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from November 1974 to November 1978, with additional Reserves service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine (Togus RO). In November 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The Board has recharacterized the psychiatric disability claim more broadly as is reflected on the title page. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The newly reopened issues of entitlement to service connection for bilateral hearing loss, tinnitus, chronic sinusitis, and the issues of entitlement to service connection for a right leg disability, right ankle disability, blood disorder and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claims to service connect a mood disorder, anxiety, bipolar disorder and PTSD (now recharacterized as a psychiatric disability), bilateral hearing loss, tinnitus, and chronic sinusitis were previously denied. He did not appeal the decisions and they are now final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claims, and they are reopened. 2. Resolving all doubt in the Veteran's favor, a psychiatric disability is etiologically related to his period of active service. CONCLUSION OF LAW 1. New and material evidence has been received to reopen the claims of entitlement to service connection for a psychiatric disability, bilateral hearing loss, tinnitus, and chronic sinusitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 2. The criteria for entitlement to service connection for a psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board decision to reopen the Veteran's claims for entitlement to service connection and grant entitlement to service connection for a psychiatric disability is favorable, discussion of VCAA compliance is unnecessary. New and Material Evidence The Veteran's claims to service connect service connection for a psychiatric disability, bilateral hearing loss, tinnitus, and chronic sinusitis were previously denied. He did not appeal the decisions and they became final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claims, to include testimony, updated VA treatment records and private treatment records, to include a positive medial opinion. Therefore, the claims are reopened. Service Connection for a Psychiatric Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Establishment of service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). The Veteran contends that a psychiatric disability resulted from his time aboard the U.S.S. Sam Rayburn during active service. His service treatment records (STRs) show that he was aboard the submarine from July 1975 to October 1978. For the following reasons, the Board finds that service connection for a psychiatric disability is established. The record reveals that the Veteran has multiple diagnoses of psychiatric disorders, to include mood disorder, anxiety, bipolar disorder, schizophrenia and PTSD. A May 2015 VA treatment record notes that the Veteran felt that there was always the threat of "fire, floods, pressure, and the dark" while serving aboard the ballistic nuclear submarine. The Veteran reported that he felt he was subject to psychological trauma "in just going into the submarine". He recalled that although, he initially failed the test to equalize his ears as required for submarine work, he was "still sent anyway". He felt stressed as a 17 year old aboard the submarine and he developed problems because he discovered he was claustrophobic. He stated that he did not seek mental health treatment while in service because he was generally discouraged from seeking treatment when he was in the military. The treating psychologist diagnosed schizoaffective disorder and anxiety disorder. A June 2015 VA treatment record shows that the Veteran recalled a fire while he was aboard a nuclear submarine and although no one was injured, he helped extinguished the fire. He recalled feeling anxious and fearful because of the potential danger. During the November 2015 Board hearing, the Veteran testified that he felt stressed and became depressed while serving aboard the U.S.S. Sam Rayburn. He recalled that he did not associated with anybody aboard the ship and would skip meals because of his depression. He also recalled that on some days, he felt "gung-ho", and others where he was depressed. An April 2016 private examination report notes the Veteran's account of a fire aboard a submarine while he was on board. The Veteran recalled that the submarine was filled with smoke and the lights went out. He described his feelings of terror and his thought that everyone would be killed. Upon examination of the Veteran and the record, the physician determined that the Veteran's various psychiatric disorders are caused by his military service. The evidence establishes the Veteran has a psychiatric disability, and it had its onset during service as the Veteran served aboard a nuclear submarine. Though not formally diagnosed during service, it is clear that a mental health disorder, manifested during and by the end of his active duty service. Based on the evidence above, and resolving the benefit of the doubt in the Veteran's favor, the Board finds that the Veteran's psychiatric disability, had its onset in service. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for a psychiatric disorder, manifested as mood disorder, anxiety, bipolar disorder, schizophrenia and PTSD, is warranted. ORDER New and material evidence having been received, the claim to reopen service connection for bilateral hearing loss is granted. New and material evidence having been received, the claim to reopen service connection for tinnitus is granted. New and material evidence having been received, the claim to reopen service connection for a psychiatric disability, to include mood disorder, anxiety, bipolar disorder, schizophrenia and PTSD is granted. New and material evidence having been received, the claim to reopen service connection for chronic sinusitis is granted. Service connection for a psychiatric disability, to include mood disorder, anxiety, bipolar disorder, schizophrenia and PTSD is granted. REMAND Remand is required for further development before the Board's adjudication of the remaining claims. The Veteran indicated that he is in receipt of disability benefits from the Social Security Administration; however, the record does not show any attempts to obtain these records. VA has a duty to attempt to obtain SSA records when it has notice of their existence. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Upon remand, the Veteran's social security records should be obtained and associated with the record. Regarding the reopened claim for hearing loss and tinnitus, remand is also required to afford the Veteran an adequate VA otolaryngological and audiological examinations, and to obtain an adequate medical opinion. Although the Veteran was afforded a VA audiological examination in March 2009, the examination does not address other possible ear conditions, to include diagnosed otitis media. In this regard, the Veteran's STRs show that clinical evaluation of his ears was abnormal on a December 1975 examination for occupational exposure to ionizing radiation and post-service VA treatment records show treatment for his ears, to include left otitis media. As such, a VA examination and opinion regarding the etiology of all ear disabilities, to include hearing loss and tinnitus. Regarding the blood disorder claim, the Veteran contends that deep vein thrombosis is caused by his in-service exposure to radiation. Special development is required for cases in which a veteran claims to have developed a disability related to exposure to ionizing radiation during service. Such development has not been accomplished; therefore, this issue warrants remand. Remand is also required to afford the Veteran VA examinations to determine the etiologies of his chronic sinusitis, right leg disability, right ankle disability, and hypertension as the Veteran has not been afforded such. 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. Contact the SSA and obtain and associate with the claims file any copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. All efforts to obtain the records should be fully documented, a negative response should be requested if no records are available. Required notice must be provided to the Veteran and his representative. 3. Upon completion of directives #1 and #2, schedule the Veteran for a VA otolaryngology and audiological examination to determine the nature and etiology of bilateral hearing loss, tinnitus, and any other diagnosed ear disability, to include otitis media. 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. All indicated tests should be performed and all findings should be reported in detail. The examiner should address the following: a) Identify all ear disabilities, to include otitis media, and opine as to whether it is at least as likely as not (50 percent probability or greater) that any ear disability identified, to include otitis media, had its onset in, or is otherwise etiologically related, to his military service. b) Does the Veteran have hearing loss, and if so, is it at least as likely as not that it had its onset in, or is otherwise etiologically related, to his military service? The examiner is asked to provide the opinion on etiology regardless of whether her hearing loss is currently disabling for VA purposes. The Board notes that the Veteran was not diagnosed with hearing loss at separation or during service, but this is not dispositive to the issue of whether current hearing loss is related to service. c) Is it at least as likely as not that tinnitus had its onset in, or is otherwise etiologically related, to his 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. 4. Upon completion of directives #1 and #2, the AOJ should conduct all necessary development to request any available records concerning the Veteran's exposure to radiation and develop the claim for service connection for a blood disorder, to include deep vein thrombosis, in accordance with 38 C.F.R. § 3.311. The AOJ should document all efforts undertaken and the responses received. 5. Upon completion of directives #1, #2 and #4, schedule the Veteran to determine the nature and etiology of any blood disorder. 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. All indicated tests should be performed and all findings should be reported in detail. The examiner should address the following: Identify all blood disorders, to include deep vein thrombosis, and opine as to whether it is at least as likely as not that any blood disorder identified, to include deep vein thrombosis, had its onset in, or is otherwise etiologically related, to his 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. 6. Upon completion of directives #1 and #2, schedule the Veteran for VA examinations to determine the etiologies of his chronic sinusitis, right leg disability, right ankle disability, and hypertension. 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. All indicated tests should be performed and all findings should be reported in detail. The examiner(s) should address the following: a) Is it at least as likely as not that chronic sinusitis had its onset in, or is otherwise etiologically related, to his military service? b) Is it at least as likely as not that a right leg disability had its onset in, or is otherwise etiologically related, to his military service? c) Is it at least as likely as not that a right ankle disability had its onset in, or is otherwise etiologically related, to his military service? d) Is it at least as likely as not that hypertension had its onset in, or is otherwise etiologically related, to his 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. 7. Upon completion of the foregoing development, readjudicate the issues 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. §§ 5109B, 7112 (2012). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs