Citation Nr: 18139830 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 13-28 108 DATE: October 1, 2018 ORDER The petition to reopen a claim of service connection for hysterical personality is denied. The petition to reopen a claim of service connection for depressive neurosis, now diagnosed as major depressive disorder is granted; the appeal is granted to this extent only. REMANDED Service connection for a psychiatric disorder, to include major depressive disorder and anxiety disorder is remanded. Service connection for hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for visual impairment is remanded. A temporary total rating based on a period of hospitalization is remanded. FINDING OF FACT 1. The Veteran’s previous claim of service connection for mental disorders, including depressive neurosis and hysterical personality, was adjudicated in a May 1972 rating decision, which as not appealed. 2. The Veteran does not currently have hysterical or histrionic personality disorder and, even if he did, compensation is not available for such disorders. 3. The Veteran has major depressive disorder, the modern counterpart to depressive neurosis, and there is an indication that major depressive disorder may be related to service. CONCLUSION OF LAW 1. The May 1972 rating decision denying the Veteran’s previous claim of service connection for mental disorders, including depressive neurosis and hysterical personality, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has not been submitted in connection with the Veteran’s claim of service connection for hysterical personality. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been submitted in connection with the Veteran’s claim of service connection for depressive neurosis, now diagnosed as major depressive disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to December 1971 with additional service in the national guard. The claims of service connection for visual impairment and hearing loss are on appeal from a January 2013 rating decision. The claim of service connection for tinnitus is on appeal from a January 2016 rating decision. The petition to reopen service connection for depressive neurosis and hysterical personality, for service connection for anxiety disorder, and for a temporary total rating are on appeal from a May 2016 rating decision. In November 2015, the Veteran testified regarding his claims of service connection for visual impairment and hearing loss at a Board hearing. In December 2015, the Board remanded the issues of service connection for visual impairment and hearing loss for additional development and consideration. As noted in the December 2015 remand, because there was a February 1972 VA Form 21-526 in which the Veteran claimed service connection for a left eye disability that was never adjudicated, the claim of service connection for visual impairment is an initial service connection claim. In his September 2016 appeal to the Board, the Veteran requested a hearing for his claims to reopen service connection for depressive neurosis and hysterical personality, for service connection for anxiety disorder, and for a temporary total rating. However, in an August 2017 statement, the Veteran indicated that he wanted to continue without a hearing. His representative confirmed the withdrawal of the hearing request in June 2018. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Petition to Reopen Whether to reopen a claim of service connection for depressive neurosis and hysterical personality. Legal Criteria If a claim of entitlement to service connection has been previously denied and that decision is final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low and does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Analysis The Veteran initially filed a claim for service connection for depressive neurosis and a nervous condition in February 1972. In April 1972, the Veteran was diagnosed with hysterical personality. In a May 1972 rating decision, denied service connection for these disorders. Notice of the decision was sent by letter in June 1972 to the Veteran’s then-current mailing address. The Veteran did not file a notice of disagreement (NOD) with the denial and nothing further was received by VA regarding service connection for depressive neurosis or hysterical personality until the Veteran filed his petition to reopen these claims in April 2016. Thus, the denial in the May 1972 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. (An August 1974 record indicates that the Veteran may have been seen at a VA hospital in 1974, but this does not represent evidence within one year of the May 1972 decision or a new claim.) In August 2016, the Veteran was afforded a VA examination to determine which psychological disorders the Veteran currently has. The examiner noted the hysterical personality disorder is an outdated diagnosis which would correspond most closely to histrionic personality disorder and that the Veteran does not meet the criteria for histrionic personality disorder. In any event, even if the Veteran had histrionic or hysterical personality disorder, VA does not compensate for personality disorders. 38 C.F.R. § 3.303(c). Thus, the Board denies the petition to reopen a claim of service connection for hysterical personality disorder as new and material evidence has not been submitted. See 38 C.F.R. § 5108; 38 C.F.R. § 3.156(a). The August 2016 examiner also diagnosed the Veteran with major depressive disorder, the modern counterpart to depressive neurosis. The examiner then opined that the Veteran’s difficulties and negative experiences during his service precipitated depression at the time, but that there is no evidence that it led to aggravation of this issue that worsened it over time or increased his propensity for major depressive disorder later in life. This opinion indicates at least some connection between major depressive disorder and service. Thus, the Board will reopen the claim, only to the extent that major depressive disorder is part of his claim of service connection for a psychological disorder. 38 C.F.R. § 5108; 38 C.F.R. § 3.156(a).   REASONS FOR REMAND 1. Service connection for a psychiatric disorder, to include anxiety disorder and major depressive disorder. 2. A temporary total rating based on a period of hospitalization. As noted above, the Veteran’s claim for service connection from depressive neurosis was reopened. Pursuant to the opinion of the August 2016 examiner, the claim is now being considered under the diagnosis major depressive disorder, the modern counterpart to depressive neurosis. The Veteran’s claim of service connection for anxiety disorder is thus expended and reframed as a claim for service connection for an acquired psychiatric disorder, to include anxiety disorder and major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As noted previously, the August 2016 VA examiner identified major depressive disorder as a current diagnosis and offered a medical opinion as to aggravation for a pre-existing condition. However, no psychological disorder, including major depressive disorder or anxiety disorder, was noted on the Veteran’s February 1971 entrance examination. As a result, the presumption of soundness applies. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption may be rebutted only upon a finding that the claimed condition both (i) clearly and unmistakably pre-existed service and (ii) clearly and unmistakably was not aggravated by service. If even one of these two elements are not met, service connection is warranted where the claimed condition is related to service. The Board must remand the claim for a new medical opinion to address these questions. The Veteran has also claimed entitlement to a temporary total rating based on a period of hospitalization. As noted in the record, the Veteran was hospitalized in June 2016 for issues related to mental health disorders. Thus, the claim for a temporary total rating is inextricably intertwined with the service connection claims for acquired psychiatric disordered remanded herein, and the Board must remand the claim for a temporary total rating as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Service connection for hearing loss. The Veteran currently has hearing loss for VA purposes. He claims that his hearing loss is related to service and specifically from acoustic trauma from an explosion of an immersion burner. In October 2012, the Veteran was afforded a VA examination of his hearing loss. At that time, the examiner opined that hearing loss was not related to service because entrance and separation examinations were within normal limits bilaterally during service and no threshold shift occurred during service. Since that examination, a January 1974 report of medical examination from the Veteran’s national guard service has been obtained. It shows that the Veteran had higher thresholds at some of the readings. This evidence should be considered by a VA examiner at a new examination. 4. Service connection for tinnitus. In January 2016, the Veteran was afforded a VA examination of his tinnitus. The report notes that tinnitus had onset within the past year. The examiner opined that tinnitus was less likely than not related to service because tinnitus had not onset until 2015. Tinnitus was, however, stated to be associated with hearing loss. Thus, the claim is intertwined with the hearing loss claim. In a May 2016 statement, the Veteran noted that he has had tinnitus since service, but that his tinnitus had gotten worse in the month prior to the examination. He states that the examiner misunderstood his report regarding the recent onset of increased symptoms as the onset of any symptoms of tinnitus. This is supported by the report of tinnitus during the October 2012 VA examination for the hearing loss claim. Thus, the January 2016 VA opinion may have been based on an inaccurate history. Thus, another examination is warranted for this claim as well.   5. Service connection for visual impairment. The Veteran claims that his current visual impairment in his left eye is related to service, and specifically to an explosion from an immersion burner. On the report of medical examination completed upon entry into service in February 1971, the Veteran’s visual impairment was noted as 20/200 in the left eye as well as a diagnosis of noncomitant estropia in the left eye less than 20 degrees for all positions of gaze with secondary amblyopia left eye 20/100. In March 1971, the Veteran’s left eye amblyopia was noted. As a result, it was recommended that he be given a non-combat military occupational specialty (MOS) and no military driver’s license. In May 1971, the Veteran was put on a medical profile for his eyes. The medical profile notes initial classification in non-combat MOS. A January 1974 report of medical examination records the Veteran’s left eye visual acuity as 20/200. Though the Veteran’s STRs from active service and national guard service have been requested and appear complete, there is no record of treatment for an accident of the type described by the Veteran. The Veteran was afforded a VA examination of his eyes in October 2012. Diagnoses of senile nuclear sclerosis and blepharitis were noted. The Veteran’s visual acuity in the right eye was 20/40 or better for all measures, except uncorrected near vision was 20/70. Visual acuity in the left eye for uncorrected distance vision was 10/200 with correction to 20/40 or better and for uncorrected near vision was 20/70 with correction to 20/40 or better. In the right cornea, an old foreign body scar, less than .5 millimeters, inferior to visual access not causing any decline in visual acuity was noted. No scars on the left eye was noted. Postoperative cataracts was noted bilaterally without aphakia or dislocation of the crystalline lens and no effect on visual acuity. Mild blepharitis bilaterally, unrelated to injury was noted. In November 2012, a VA medical opinion addressing the Veteran’s medical disorders was obtained. The examiner noted the Veteran’s pre-service ocular diagnoses. He stated that best vision during service was 20/100, but now with a significantly higher prescription vision is corrected to 20/25. Esotropia with secondary amblyopia was said not to be aggravated by service as the Veteran’s vision is now correctable and neither diagnosis is present currently. Additional diagnosis, noted as senile nuclear sclerosis (cataracts) and blepharitis were noted as not affecting visual acuity. While the VA examination conducted was very thorough, the medical opinion provided by the VA examiner addresses the wrong inquiry. The question to be asked is whether a current ocular diagnosis, including cataracts and blepharitis, is at least as likely as not related to service and, if so, whether associated visual impairment was caused by trauma or the disorder results in symptoms other than visual acuity. Therefore, a remand is necessary for another VA examination. The matters are REMANDED for the following action: 1. Obtain new medical opinions regarding the etiology of the Veteran’s psychiatric disorders, diagnosed as major depressive disorder and anxiety disorder, and his visual impairment by the appropriate examiners. Specifically, the examiners should address: (A) Whether one or more diagnosed disorder both (i) clearly and unmistakably pre-existed service and (ii) clearly and unmistakably was not aggravated by service. (B) For any diagnosed disorder for not clearly and mistakably pre-existing service or not clearly and unmistakably not aggravated by service or both, whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disorder is related to service. (C) Whether it at least as likely as not that the Veteran’s visual disorders, diagnosed as senile nuclear sclerosis (cataracts) and blepharitis, are related to service, to include as due to injury from an immersion burner explosion. (D) If so, does the disorder result in disability other than refractive error of the eye not due to trauma. A complete rationale should be provided for any opinion rendered. 2. Schedule the Veteran for a VA audiological examination in connection with the hearing loss and tinnitus claims. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s hearing loss had its onset during service, within one year of service, or is otherwise related to service. The examiner should specifically address the hearing impairment shown in the January 1974 report of medical examination which reveals pure tone thresholds of 30 dB in the right ear and 35 dB in the left ear at the 500 Hertz level. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran’s tinnitus had its onset during service, within one year of service, or is otherwise related to service. The examiner should specifically address the note of tinnitus in the October 2012 VA hearing loss examination and the Veteran’s lay statements as to onset of tinnitus. (Continued on the next page)   A complete rationale should be provided for any opinion rendered. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George