Citation Nr: 18142902 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-09 436 DATE: October 17, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. To this limited extent only, the appeal of that issue is granted. Entitlement to a compensable initial evaluation for bilateral hearing loss is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected type II diabetes mellitus is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. The Veteran’s claims of service connection for an acquired psychiatric disorder and PTSD were denied in July 1983, May 1994, and October 2004 rating decisions that were not appealed; no further evidence relevant to the Veteran’s service connection claims was submitted for a period of one year following any of these rating decisions. 2. Evidence submitted since the October 2004 rating decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s service connection claim for an acquired psychiatric disorder. 3. Throughout the appeal period, the Veteran’s bilateral hearing loss manifested in no greater than Level I hearing loss in one ear and Level II hearing loss in the other. CONCLUSIONS OF LAW 1. New and material evidence has been received since the October 2004 denial became final; the criteria for reopening the previously denied claim for PTSD have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for establishing a compensable initial evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013, April 2013, and July 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes the Veteran submitted an application for service connection for PTSD; as the record reflects differing diagnoses, the Board has broadened the claim for service connection before it to include any acquired psychiatric disorder, including PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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 Veteran filed his initial claim for service connection for an acquired nervous disorder in April 1983, which was denied in a July 1983 rating decision. The Veteran applied for service connection for PTSD in November 1993. The RO denied service connection for that claim in a May 1994 rating decision based on a finding that there was no credible evidence of an in-service stressor. The Veteran was notified of that decision in a June 1994 notice letter. The Veteran again applied for service connection for PTSD in April 2004, and was denied in an October 2004 rating decision. He was notified of that decision in an October 2004 rating decision. The Veteran did not submit a notice of disagreement with the decisions or any additional evidence respecting the claims within one year of the corresponding notice letters. The claims for service connection for acquired nervous disorder and for PTSD are considered the same claim, as they describe the same general set of symptoms. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As no timely notice of disagreement or new and material evidence was received during the appeal period following, most recently, the October 2004 notice letter, the October 2004 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for an acquired psychiatric disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the October 2004 rating decision, evidence of in-service stressors has been associated with the record, as well as evidence of other psychiatric diagnoses. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for an acquired psychiatric disorder has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim). 2. Entitlement to a compensable initial evaluation for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Evaluations for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test, the Maryland CNC test, together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI-VII, Diagnostic Code 6100. Hearing acuity levels are assigned using just the puretone audiometry tests only where the examiner certifies that use of the speech discrimination test is not appropriate due to language difficulties or inconsistent speech discrimination test scores, for instance, or where exceptional patterns of hearing impairment exist. 38 C.F.R. §§ 4.85(c), 4.86. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a)-(b). In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. In February 2013, the Veteran was afforded a VA audiological examination, which returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 30 55 LEFT 25 20 25 75 70 The average puretone threshold was 33.75 decibels in the right ear and 47.5 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear. Applying these results to Table VI yields a finding of Level I hearing loss in the right ear and Level II hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at Level I in the better ear and Level II in the poorer ear, Table VII provides a noncompensable disability evaluation. Id. § 4.85(e). In March 2016, the Veteran was afforded another VA audiological examination, which returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 30 60 65 LEFT 25 30 40 70 75 The average puretone threshold was 46.25 decibels in the right ear and 53.75 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 88 percent in the right ear and of 94 percent in the left ear. Applying these results to Table VI yields a finding of Level II hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85(d). Where hearing loss is at Level I in the better ear and Level II in the poorer ear, Table VII provides a noncompensable disability evaluation. Id. § 4.85(e). Since the November 2016 examination, the Veteran has not asserted that his hearing has worsened. No other audiograms are of record during the period on appeal. As there is no evidence of record showing that the service-connected bilateral hearing loss was measured to be more severe than the criteria for a noncompensable evaluation at any point during the period on appeal, a compensable evaluation for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. The issues of entitlement to service connection for fibromyalgia and to an initial evaluation in excess of 10 percent for service-connected type II diabetes mellitus are remanded. At the February 2013 VA diabetes and psychiatric examinations, the Veteran reported that he was in receipt of Social Security disability benefits for fibromyalgia, PTSD and diabetes. These records are not in the claims file, and they are potentially relevant to the claims on appeal. When VA has notice that the Veteran may be receiving disability benefits from the Social Security Administration, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. At the February 2013 VA psychiatric examination, the examiner opined that the Veteran did not meet the DSM-IV criteria for PTSD. The examiner instead diagnosed adjustment disorder with depression, and opined that this is more likely than not related to his physical and situational problems. As the Veteran is service-connected for several physical disabilities, a remand is necessary to obtain an opinion addressing whether any psychiatric disorder is caused by or aggravated by any of the service-connected disabilities. The matters are REMANDED for the following action: 1. First, obtain the Social Security Administration records pertinent to the Veteran’s claim for fibromyalgia, including medical records relied upon to make any related determination, and associate these with the claims file. All efforts to obtain these records should be fully documented, and Social Security Administration should provide a negative response if these records are not available. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine whether any acquired psychiatric disorder is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found, using both DSM-IV and DSM-V criteria. For each psychiatric disorder identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that each psychiatric disorder is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disorder) by any of the Veteran’s service-connected physical disabilities and/or the combined effects of them. In providing this opinion, the examiner must consider the February 2013 VA examination report that indicates the Veteran’s current psychiatric disorder is related to his “physical and situational problems.” If aggravation is found, the examiner must attempt to establish a baseline level of severity of the psychiatric disorder prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are distinct theories and must be addressed separately and independently. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel