Citation Nr: 18143109 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-41 884 DATE: October 18, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a right ankle condition has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for an acquired psychiatric disorder has been received, the application to reopen is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a rating decision dated in June 1994, the RO denied the Veteran’s claim for service connection for a right ankle condition on the basis that the evidence did not show a current right ankle condition; the Veteran did not appeal this decision or submit new evidence within one year of the denial. 2. Evidence received since the June 1994 RO decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right ankle condition. 3. In a rating decision dated in November 2002, the RO denied the Veteran’s claim for service connection for an acquired psychiatric disorder on the basis that the evidence did not show a complaints or treatment for a psychiatric disorder during the Veteran’s service and there was no evidence linking the Veteran’s psychiatric disorder to his service; the Veteran did not appeal this decision or submit new evidence within one year of the denial. He later filed a claim to reopen which was denied in August 2009, and he did not appeal. 4. Evidence received since the August 2009 RO decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right ankle condition. 5. The preponderance of the evidence fails to establish that the Veteran has a bilateral hearing loss disability for VA purposes. 6. It is at least as likely as not that the Veteran’s tinnitus had its onset during his active duty service and has continued since that time. CONCLUSIONS OF LAW 1. The June 1994 rating decision denying service connection for a right ankle condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a right ankle condition has been submitted; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The August 2009 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 4. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder has been submitted; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. 6. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to July 1986. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, in January 2015, the Veteran’s psychologist wrote that the Veteran’s psychiatric disability resulted in the Veteran’s unemployability. As the evidence suggests that the Veteran is unemployable due to symptoms of his disabilities, the issue of entitlement to a TDIU has been raised. New and Material Evidence Right Ankle Condition The Veteran’s claim for service connection for a right ankle condition was denied in a June 1994 rating decision. The RO determined that the evidence did not show that the Veteran had a current right ankle condition. The Veteran did not appeal this decision or submit new evidence within one year of the denial. The June 1994 decision thereby became final. Since that final decision, the Board finds that the Veteran has submitted new and material evidence. Specifically, the Veteran’s October 2013 VA treatment records reflect that the Veteran was seen for right ankle pain. The Board finds that the newly submitted evidence reasonably raises the possibility the Veteran has a current right ankle condition. Because new and material evidence has been submitted, the Board will reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). Acquired Psychiatric Disorder The Veteran’s claim for service connection for an acquired psychiatric disorder was denied in a November 2002 rating decision. The RO determined that the evidence did not show a complaints or treatment for a psychiatric disorder during the Veteran’s service and there was no evidence linking the Veteran’s psychiatric disorder to his service. The Veteran did not appeal this decision or submit new evidence within one year of the denial. The November 2002 decision thereby became final. Thereafter, his claim to reopen was denied in an August 2009 rating decision because no new and material evidence had been submitted. That decision then became final. Since that final decision, the Board finds that the Veteran has submitted new and material evidence. The Veteran has indicated that he experienced nightmares and anxiety in service. The Board finds that the newly submitted evidence reasonably raises the possibility the Veteran’s acquired psychiatric disorder began in service. Because new and material evidence has been submitted, the Board will reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). Service Connection The Veteran asserts entitlement to service connection for bilateral hearing loss and tinnitus due to active service. Specifically, he asserts that these disabilities are due to his noise exposure due to the firing of rounds while in service. See February 2012 Correspondence. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, that list includes organic diseases of the nervous system (including tinnitus and sensorineural hearing loss). See 38 C.F.R. 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Bilateral Hearing Loss The Board finds that the evidence does not support a finding of service connection for bilateral hearing loss. With respect to the first element of service connection, a current diagnosis, the Veteran underwent an audiological VA examination in April 2012. His results were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 25 20 LEFT 25 25 20 25 20 Speech discrimination was excellent bilaterally at 96 percent. The Board finds that the Veteran’s bilateral hearing loss does not meet the requirements for sensorineural hearing loss for VA purposes. The auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 40 decibels or greater; nor were the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at 26 decibels or greater. Additionally, speech recognition scores using the Maryland CNC Test were greater than 94 percent. Thus, the Veteran does not have a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385, Shedden. Here, the medical evidence unequivocally shows that the Veteran has not been diagnosed with bilateral hearing loss for VA purposes at any time during the course of the appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 1110; see also Brammer, 3 Vet. App. at 225. In this case, there is no medical evidence showing that the disability in question has been present at any time during the pendency of the claim; the Veteran has accordingly not shown a current disability for which service connection can be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). Tinnitus The Board finds that the evidence supports a finding of service connection for tinnitus. First, the record demonstrates that the Veteran currently has tinnitus. Specifically, the Veteran has reported that he experiences recurrent tinnitus. See April 2012 VA Examination. For VA purposes, tinnitus has been 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) (noting that the Veteran was competent to testify as to ringing in the ears in service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). Thus, the requirement for a present disability has been met. Shedden, supra. Second, the record supports a finding of an in-service incurrence. In a July 2016 statement, the Veteran recounted being exposed to gunfire and combat noise during routine military exercises. The Veteran’s DD-214 indicates that he recognized has being an expert with the M-16 rifle. The Board finds the Veteran’s statements to be credible. Thus, the requirement for an in-service incurrence has been met. See id. With regard to the third Shedden element, the Board finds that the evidence conflicts. The Veteran underwent a VA examination in April 2012. The examiner did not consider the Veteran’s contentions, but opined that it was less likely than not that the Veteran’s tinnitus was caused by his service because the Veteran did not report tinnitus during service and there was no significant change in his hearing at separation. In contrast, the Veteran reported the onset of tinnitus in service, and he has also reported that he has had ringing in his ears since his service. See July 2016 statement. The Board finds the Veteran’s statement concerning continuity of symptomatology to be competent and credible. Further, because for chronic diseases such as tinnitus, nexus may be satisfied through a demonstration of in-service continuity of symptomatology, 38 C.F.R. §§ 3.303(b), 3.309; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (finding that tinnitus is a chronic condition for purposes of 38 C.F.R. § 3.309(a)), the Board finds the Veteran’s lay assertions supportive of a finding of nexus. See Shedden, supra. Given that the evidence for and against the claim is in relative equipoise, the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran’s favor, the Board finds that the final element of service connection are established. See Walker, 708 F.3d 1331; see Fountain, 27 Vet. App. 258. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND Upon review of the record, the Board finds that the remaining issues must be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to service connection for a back condition is remanded. 2. Entitlement to service connection for a right knee condition is remanded. 3. Entitlement to service connection for a right ankle condition is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board notes that the Veteran has not been afforded VA examinations with respect to his current claims for service connection for a back condition, right knee condition, right ankle condition, and an acquired psychiatric disorder. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran’s October 2013 VA treatment records indicate that he is being treated for a right ankle pain, right knee pain, and back pain, and was diagnosed with an acquired psychiatric disorder in December 2014 ; has asserted that these conditions began in service; and has provided lay evidence that these conditions have continued since service; however, there is insufficient evidence of record to decide the claims. Consequently, remand for examinations and etiology opinions is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Board also noted that the Veteran’s December 2014 private medical examination notes a current diagnosis of an acquired psychiatric disorder. However, the examination does not contain a nexus opinion. As such, remand is necessary to obtain an adequate opinion. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that the TDIU issue is not fully developed for appellate review, as the Veteran has not been provided with notice of the laws and regulations governing TDIU. The matter must be remanded to initiate this due process. See 38 C.F.R. § 4.16. Furthermore, with regard to the TDIU claim, it is inextricably intertwined with the Veteran’s service connection claims. The Board will defer adjudication of the TDIU claim until the development deemed necessary for the claim has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s back condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the current back condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must comment on the Veteran’s lay assertion that his back injury is due to the heavy lifting he performed during his service. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right knee condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the current right knee condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right ankle condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the current right ankle condition had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must comment on the Veteran’s service treatment records which note a right ankle sprain in June 1981. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (probability of 50 percent or more) that the current acquired psychiatric disorder had its onset in or is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page)   7. After any necessary development and readjudication of the service-connection claims, readjudicate the TDIU issue remaining on appeal. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel