Citation Nr: 1803695 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-13 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include a nervous condition, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1969 to January 1972. During his period of service, the Veteran earned National Defense Service Medal and Marksmanship Badge (M-14). This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied the Veteran's request to reopen the claim for service connection for a nervous condition; and denied entitlement to service connection for tinnitus. This matter was previously remanded in September 2015 for further development. The most recent Board remand also included the issues of entitlement to service connection for residuals of a left foot injury. This claim was granted in a September 2016 rating decision, which represented a complete grant of benefits with respect to the issue. As such, the claim of entitlement to service connection for scar, left foot (also claimed as residuals left foot injury) will not be discussed further herein. The Veteran's claim for service connection for a nervous condition was denied in a July 2004 rating decision. The RO determined that there was no evidence that the Veteran developed a chronic psychiatric disability to a compensable degree within one year of discharge. The Veteran did not appeal this decision or submit new evidence within one year of the denial. The July 2004 decision thereby became final. Since that final decision, VA treatment records associated with the claims file pursuant to a September 2015 remand raised the reasonable possibility of substantiating the claim for service connection. The RO considered the claim reopened and scheduled a VA examination. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The Board finds the VA treatment records satisfy the low threshold requirement for new and material evidence and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that the psychiatric disability issue certified to the Board was whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a nervous condition. Although not expressly claimed by the Veteran, the Board is expanding this reopened issue to include all acquired psychiatric disorders. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, related symptoms, and any other information of record. Clemons v. Shinseki, 23 Vet. App 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for a nervous condition has been recharacterized on the front page of this decision as service connection for an acquired psychiatric disorder, to include a nervous condition. The issue of entitlement to service connection for an acquired psychiatric disorder, to include a nervous condition 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 rating decision dated in July 2004, the RO denied the Veteran's claim for service connection for a nervous condition on the basis that there was no evidence that the Veteran developed a chronic psychiatric disability to a compensable degree within one year of discharge; the Veteran did not appeal this decision or submit new evidence within one year of the denial. 2. Evidence submitted subsequent to the July 2004 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a nervous condition. 3. The evidence is at least in equipoise as to whether tinnitus is the result of noise exposure during military service. CONCLUSIONS OF LAW 1. The July 2004 rating decision denying service connection for a nervous condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a nervous condition has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection are met for tinnitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic diseases such as tinnitus, nexus may be established by showing a continuity of symptoms. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to a present disability, a review of the medical evidence reflects that the Veteran has been diagnosed with tinnitus. Thus, the current-disability criterion for service connection is met. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. The Veteran's DD-214 shows that his military occupational specialty (MOS) was Pershing Missile Crewman during service. The Veteran has reported that he was exposed to loud noises during training exercises. Indeed, the Veteran has been awarded service connection for hearing loss based on his in-service exposure. As such, the Board will afford the Veteran the full benefit-of-the-doubt and concede in-service noise exposure. The second element of service-connection is met. See Shedden, supra. With regard to the remaining issue of nexus, the evidence is contradictory. In a March 2011 statement in support of claim, the Veteran reported that he had been experiencing tinnitus since service. The Veteran was examined to determine the etiology of his tinnitus in June 2012. The examiner noted the Veteran's reports of in-service noise exposure and complaints of recurrent tinnitus. The examiner concluded that it was less likely than not that the Veteran's tinnitus was related to military noise exposure because he had no complaints of tinnitus in service and the periodic nature of his tinnitus was "not indicative to true tinnitus, but rather a physiologic bodily process." Having considering the evidence of record, the Board concludes that the Veteran is entitled to service connection for tinnitus. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran has competently reported the onset of his tinnitus in service, and continuity thereafter. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is mindful of the conflict between the Veteran's lay statements regarding the onset and continuity of his tinnitus symptoms in and since service, and the June 2012 VA medical opinion against causal nexus. However, the evidence for and against the claim is at least in equipoise as to whether the Veteran's current tinnitus is related to service. After resolving all reasonable doubt in his favor, service connection for tinnitus is warranted. See 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a nervous condition has been received, the application to reopen is granted. Entitlement to service connection for tinnitus is granted. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for an acquired psychiatric disorder, to include a nervous condition. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board remanded the Veteran's claim in September 2015 to associate VA treatment records with the claims file and to provide the Veteran a VA examination to assess the nature and etiology of any currently diagnosed acquired psychiatric disorder, to include a nervous condition. In April 2016, the Veteran underwent a VA examination for his claimed acquired psychiatric disorder. The examiner stated that she could not say, without resorting to mere speculation, whether the Veteran's currently diagnosed other specified anxiety disorder was caused by or related to events during his service. The examiner further stated that she could not establish a clear nexus from his military experience to his currently diagnosed other specified anxiety disorder, which primarily involved anxiety and worry about his family and his safety in his neighborhood. In this regard, the Board acknowledges that the Court has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds that a remand is necessary to provide the Veteran with a new VA examination relating to his claim for service connection for an acquired psychiatric disorder, to include a nervous condition. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to address the nature and etiology of his claimed psychiatric disability. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner should identify all current psychiatric diagnoses, including any that may have resolved during the appeals period (March 2011 to the present). For each diagnosis, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that such a disability had its onset in service or was otherwise etiologically related to active service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After completing the above actions, the Veteran's claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. 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). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs