Citation Nr: 1805330 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-11 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL Appellant and J.M. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1967 to July 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2015, the Board remanded the case. A January 2016 rating decision assigned a 50 percent rating for PTSD, effective February 2010. [Although Agency of Original Jurisdiction (AOJ) implicitly reopened the claim of service connection for bilateral hearing loss (by considering it on the merits), the Board must address on its own whether new and material evidence to reopen the claim has been received to establish its jurisdiction to review the merits of the claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The issue is characterized accordingly.] The Board's March 2015 decision also granted service connection for tinnitus, resolving that matter. FINDINGS OF FACT 1. A November 2005 rating decision denied the Veteran service connection for bilateral hearing loss, essentially on the basis that there was no evidence that such disability may be related to his service. 2. Evidence received since the November 2005 rating decision does not tend to show that a bilateral hearing loss is related to the Veteran's service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and does not raise a reasonable possibility of substantiating such claim. 3. The Veteran's PTSD is not shown to be manifested by symptoms greater than resulting in occupational and social impairment with reduced reliability and productivity; symptoms productive of deficiencies in most areas are not shown. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for bilateral hearing loss may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. A rating in excess of 50 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411 (2107). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by March and October 2010 letters. The March 2010 letter provided the Veteran the notice required in claims to reopen; advised him of the basis for the previous denial of service connection for bilateral hearing loss, and that new and material evidence was required to reopen the claim; provided the definition of new and material evidence; suggested what type of evidence would be new and material; and identified what was needed to substantiate the underlying service connection claims. A notice deficiency is not alleged. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records (STRs), and VA records have been secured. In a claim to reopen, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until the previously denied claim is, in fact, reopened. 38 C.F.R. § 3.159 (c)(4)(iii). Nevertheless, the Veteran was afforded examinations to determine the etiology of his bilateral hearing loss and the severity of his service-connected PTSD. The Board's March 2015 remand directed the AOJ to secure VA records, to include of a reported VA evaluation for hearing loss in the 1970's . In January 2016, the AOJ certified that after an exhaustive search for such records, it had been determined that any such records had been destroyed, lost or were otherwise unattainable. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. 3.103(c)(2) requires that a VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the January 2015 hearing, the undersigned identified the issues, and advised the Veteran of what is needed to substantiate the claims. A hearing deficiency is not alleged. The Board finds that there has been substantial compliance with the March 2015 Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs show that in report of medical history on a September 1967 pre-induction examination he reported a hearing loss . Audiometry at the time found that puretone thresholds in each ear were 0 (15), 0 (10), 0 (10) and 5 (10), decibels at 500, 1,000, 2,000 and 4,000 Hertz, respectively. The figures in parentheses represent the conversions of American Standard Associates values to International Standards Organization values. He again reported a hearing loss in a report of medical history on July 1969 service separation examination. Audiometry on examination found that right ear puretone thresholds were 15, 5, 0 and 0, decibels at 500, 1,000, 2,000 and 4,000 Hertz, respectively. Left ear puretone thresholds were 25, 5, 0 and 0. The Veteran's discharge certificate shows he received a Purple Heart Medal. Audiometry on September 1969 VA found that right ear puretone thresholds were 10, 5, 0, 5 and 5 decibels at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 5, 5, 0, 5 and 0 decibels. It was noted that the Veteran's hearing acuity was within normal limits in each ear. September 1970 VA audiometry found that puretone thresholds in each ear were 0, 0, 0 and 0 at 500, 1,000, 2,000 and 4,000 Hertz, respectively. It was noted that the Veteran's hearing acuity was within normal limits in each ear. VA outpatient treatment records shows that in October 2002, the Veteran reported he had decreased hearing acuity in each ear. A history of exposure to noise in service was noted. Audiometry found a mild to severe sensorineural hearing loss (SNHL). On October 2005 VA audiology examination, it was noted that the Veteran's STRs showed that his hearing was within normal limits in service and [following service] in 1970. He reported a history of exposure to noise in service. It was noted that he had a mild to moderate SNHL, bilaterally. The examiner opined that the Veteran's hearing loss was not caused by or a result of service. She based her opinion on her clinical experience and expertise. She noted that the Veteran's hearing was within normal limits throughout service, and that he had normal hearing on 1970 VA examination . Service connection for bilateral hearing loss was initially denied by the RO in June 1970 on the basis that such disability was not shown . He was notified of the rating decision, and did not appeal it. A November 2005 rating decision reopened the claim, but denied service connection for bilateral hearing loss, essentially on the basis that it was not shown to be related to service. He was notified of the rating decision, and did not appeal it. On April 2010 VA audiological examination, the Veteran related that he served in infantry for two years, was exposed to gunfire on a daily basis, and was occasionally exposed to mortar fire. He also reported grenades exploded near him on at least two occasions, resulting in a temporary hearing loss. The examiner noted that the Veteran had a mild to profound bilateral SNHL. She stated that without the Veteran's STRs, she could not resolve the question regarding the etiology of his hearing loss. On November 2010 VA audiological examination, the Veteran described his exposure to noise in service. He acknowledged that he had occasional postservice exposure to noise in his occupation as a machinist, and also had exposure to recreational noise. The diagnosis was bilateral SNHL. The examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of exposure to noise in service. She noted that while the Veteran stated he had a hearing loss when he entered service, audiometry found normal hearing on service entrance examination. Similarly, on service separation examination, while he said he had a hearing loss, testing found his hearing to be normal. She noted that while there was a small shift in thresholds at 500 Hertz bilaterally, there was no evidence of a permanent change as the Veteran had two examinations following service when the shift was not noted. The examiner also stated that the low frequency hearing loss is not typically the pattern seen with noise trauma, and is more commonly attributed to middle ear issues. She stated that the tests in 1969 and 1970 indicated that the Veteran had normal hearing with no shifts when compared to the baseline test, and that there was no hearing loss following service. The examiner also noted that the Veteran reported postservice exposure to both occupational and recreational noise, which may have contributed to his hearing loss. On November 2010 VA psychiatric examination, the Veteran related that he was socially withdrawn, but maintained a relationship with one of his two children. On mental status evaluation, he was described as casually dressed and cooperative. His mood was anxious, agitated and depressed, and his affect was normal. He was not able to do serial 7's. He was oriented to person, place and time. Thought process and thought content were unremarkable. He understood the outcome of his behavior and understood that he had a problem. He had a sleep impairment, and noted that he had sleep apnea. He denied hallucinations and inappropriate behavior. He did not have ritualistic or obsessive behavior. He reported panic attacks. He denied suicidal or homicidal ideation. His impulse control was fair, and he was able to maintain minimal personal hygiene. Memory was mildly impaired. The Veteran stated that he was unemployed, but denied that it was due to psychiatric disability. The diagnoses were PTSD, moderate and major depression, moderate. The Global Assessment of Functioning (GAF) score was 55. The examiner noted that the Veteran's PTSD resulted in deficiencies in thinking, family relations, work and mood, but not in judgment. There was reduced reliability and productivity due to PTSD. On December 2015 VA psychiatric examination, the Veteran reported that he had nightmares and intrusive thoughts of combat, but they had decreased in frequency over the years. He described himself as quite withdrawn from others, which increased his depression. He was mistrustful. He stated he had disrupted sleep, and was irritable and hypervigilant. He denied suicidal ideation or intent. The examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity. He stated that most of the Veteran's occupational and social impairment was due to PTSD. It was noted that he had a good relationship with one daughter, but had difficulty getting along with his other daughter. He stated he had no friends and limited social contact. Examination found that his symptoms included depressed mood, anxiety, chronic sleep impairment, a mild memory loss and difficulty in establishing and maintaining effective work and social relationships. The diagnoses were PTSD and depressive disorder. The examiner noted that the Veteran was casually dressed and well groomed. He generally provided information with prompting. He was correctly oriented to person, place, time, and purpose. Thoughts were logical and goal directed. There were no signs of major psychopathology such as hallucinations or delusions. His affect was constricted and mood was neutral. Attention and memory were grossly intact. He did not have total occcupational and social impairment due to PTSD. He does not have gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The examiner also noted that the veteran does not have occupational and social impairment with deficiencies in most areas due to PTSD. He does not have suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships. The examiner found that he had occupational and social impairment with reduced reliability and productivity related to PTSD. He did not have flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; or difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. The veteran had mild to moderate periodic impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); mild to moderate disturbances of motivation and mood; and difficulty in establishing and moderate difficulty maintaining effective work and social relationships related to his service connected PTSD. On December 2015 VA hearing loss examination, the Veteran reported significant exposure to noise in service, as well as exposure to both occupational and recreational noise postservice. The diagnosis was bilateral SNHL. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of service. The examiner, who reviewed the record, noted that the Veteran had normal hearing in service, including on service separation examination, and that there was a significant (greater than normal measurement variability) shift in both ears at 500 Hz during service. However, a low frequency shift is not typical of acoustic trauma. Therefore, there is no objective evidence of acoustic trauma in either ear during military service. New and material evidence to reopen a claim of service connection for bilateral hearing loss When there is a final rating decision denial of a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). The requirement for new and material evidence to raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As was noted above, the Veteran did not appeal the November 2005 rating decision and it became final. 38 U.S.C. § 7105. Consequently, new and material evidence to reopen the claim is required before the claims may be considered de novo. As the prior denial was based on a finding that a bilateral hearing loss was not shown to be related to the Veteran's service, for evidence received since to relate to the unestablished fact necessary to substantiate the claim (and be new and material, warranting reopening of the claim), it would have to tend to show that the Veteran's bilateral hearing loss is etiologically related to a disease, injury, or event in service. The only pertinent evidence added to the record since the November 2005 rating decision consists of VA examination reports which show that the Veteran has a bilateral hearing loss disability (but do not include a medical opinion that relates such disability to service) and the Veteran's hearing testimony which described his exposure to extensive noise in service and expressed his belief that his hearing loss is related to exposure to noise in service. [He also submitted a statement at the hearing indicating he had a temporary hearing loss.] Such evidence while new, in the sense that it was not previously associated with the record, is not material. The VA examiners in 2010 and 2015 both found that the Veteran's hearing loss was not related to service (and noise trauma therein). They cited to supporting factual data, and their opinions are probative evidence in the matter. However, the opinions do not bear positively on the unestablished fact necessary to substantiate the claim, as both are against the Veteran's claim. They therefore cannot be found to raise a reasonably possibility of substantiating the claim. The Veteran's testimony is cumulative evidence (and therefore is not new). It was previously established, and is not in dispute that he was exposed to excessive levels of noise in service; and he had previously expressed his belief that his hearing loss is related to noise trauma in service. Notably, whether a hearing loss disability first documented many years after service may be related to noise trauma during service or a temporary hearing loss experienced during service, particularly when there is a significant history of exposure to noise during the intervening period, is a medical question. The Veteran is a layperson, and has not submitted a supporting medical opinion or medical literature. His own opinion regarding the etiology of his hearing loss is not probative evidence in the matter. In summary, no evidence received since the last final (November 2005) rating decision in this matter is new evidence that positively bears on the unestablished fact necessary to substantiate this claim (i.e., whether the current hearing loss disability is etiologically related to the Veteran's service) and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for bilateral hearing loss may not be reopened. Increased rating for PTSD Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. This analysis is undertaken considering the possibility that different ratings may be warranted for different periods of time, based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 100 percent rating is warranted for PTSD when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), CAVC noted that the list of symptoms in the Board's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It was noted the regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular symptoms. At no time under consideration is the Veteran's PTSD shown to have been of such severity as to produce occupational and social impairment with deficiencies in most areas. The November 2010 VA psychiatric examination found that the Veteran was anxious and depressed. But while he reported having panic attacks, he was not found to have symptoms of a nature and severity consistent with those in the criteria for the next higher (70 percent) rating. Significantly, he tended to personal hygiene, and was noted to have no problems with activities of daily living. Memory was only mildly impaired. The Veteran tended to his own financial matters; and while he was unemployed, he attributed the status to the state of the economy, and not to his mental health. And while he was socially withdrawn and divorced, it was noted that he maintained relationships with one of his children. The examiner characterized his symptoms as moderate and found that he had reduced reliability and productivity due to PTSD. Similarly, while on December 2015 VA examination the Veteran reported being withdrawn, irritable, hypervigilant, anxious and having impaired sleep, it was noted that he maintained appearance and hygiene, was oriented in all spheres, and did not have periods of intermittent inability to tend to activities of daily living. He reported that he had dated since his divorce, and maintained good relations with one daughter, which reflect some degree of social functioning. He indicated that he stopped working because he was laid off (as the plant had closed); he did not have problems on the job. He was considered capable of tending to his own financial matters. The examiner noted that the Veteran did not have suicidal ideation, obsessional rituals, near continuous panic impaired impulse control or neglect of personal appearance, but rather had occupational and social impairment with reduced reliability and productivity due to PTSD. In summary, the record reflects that at no time under consideration is the Veteran's PTSD shown to have been of such nature and severity to result in occupational and social impairment with deficiencies in most areas. He is retired, tends to all activities of daily living and his financial matters by himself, and although being withdrawn, maintains at least some semblance of a social life. He has not exhibited the types of types (suicidal ideation, obsessional rituals, etc.) that are typically associated with a 70 percent rating. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. ORDER The appeal to reopen a claim of service connection for bilateral hearing loss is denied. A rating in excess of 50 percent for PTSD is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs