Citation Nr: 18145667 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-40 846 DATE: October 30, 2018 ORDER New and material evidence has not been submitted to reopen the Veteran’s claim of entitlement to service connection for asthma. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for residuals of a traumatic brain injury is denied. Entitlement to service connection for an acquired psychiatric disorder to include a major depressive disorder is denied. REMANDED Entitlement to service connection for residuals of a perforated ear drum is remanded. FINDINGS OF FACT 1. Service connection for asthma was denied in a March 2015 rating decision, and a neither a timely appeal was perfected nor new and material evidence received within a year of that decision. 2. Evidence received since the March 2015 rating decision denying service connection for asthma is cumulative and redundant of the evidence of record at the time of the March 2015 final decision, and does not raise a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a diagnosis of a bilateral hearing loss for VA compensation purposes. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of traumatic brain injury. 5. The preponderance of the evidence is against finding that an acquired psychiatric disorder to include a major depressive disorder is proximately related to his active duty service, to include due to combat exposure, and a psychosis was not compensably disabling within one year of separation from active duty. CONCLUSIONS OF LAW 1. The March 2015 rating decision denying entitlement to service connection for asthma is final; new and material evidence to reopen that claim has not been submitted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. A bilateral hearing loss was not incurred or aggravated inservice, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. Chronic residuals of a traumatic brain injury were not incurred or aggravated inservice. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. An acquired psychiatric disorder, to include a major depressive disorder was not incurred or aggravated inservice, and a psychosis may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1969 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico (Agency of Original Jurisdiction (AOJ)). The record reflects that the Veteran initially sought a hearing before the Board. However, after a hearing before a Decision Review Officer, the Veteran requested that the Board make a decision based on the evidence of record. Furthermore, the Veteran’s representative indicated that the Decision Review Officer hearing was conducted “in lieu of a formal [Board] hearing.” The Board will therefore proceed to adjudicate the Veteran’s claims. New and Material Evidence Generally, an unappealed rating decision is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Under 38 C.F.R. § 3.156, “new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Asthma The Veteran filed a claim of entitlement to service connection for asthma in October 2014. Evidence of record at the time included the Veteran’s service and VA treatment records. The service treatment records are notable for the appellant’s report of a history of shortness of breath at his April 1971 separation examination. He denied any history of asthma. Physical examination in April 1971 revealed normal lungs. A review of the then available VA records included an August 1971 VA compensation examination. At that time the appellant reported a history of shortness of breath since being exposed to malaria. (The service treatment records do not reveal any complaints, findings or diagnoses of malaria.) Physical examination in August 1971 revealed a normal chest, and the examiner stated that the history did not point to an asthmatic disorder. A chest X-ray revealed normal findings. Also available in October 2014 were VA treatment records. These show evidence of treatment for asthma by 2003. Shortly after he filed the claim, additional VA treatment records were added to the file, again noting his history of asthma. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim for asthma. The AOJ again denied the Veteran’s claim for service connection for asthma in a March 2015 rating decision. The claimant was provided notice of this action and his appellate rights via a letter dated March 4, 2015, however, he did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §7105. Evidence submitted since the March 2015 final rating decision primarily includes VA treatment records. However, this evidence does not raise the possibility of substantiating the Veteran’s claim. Some of these records are duplicitous of the evidence of record at the time of the March 2015 rating decision. Those that were not already affiliated with the record merely reference the Veteran’s asthma generally; they do not provide any evidence suggesting asthma may have originated in service or is otherwise linked to his active duty. The Board finds that as the information provided and evidence associated with the Veteran’s claims file is not material, it is insufficient to permit reopening his claim for entitlement to service connection for asthma, and the claim remains denied. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran served in combat during the Vietnam War. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in 38 U.S.C. § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Bilateral hearing loss 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, 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. Service connection for a sensorineural hearing loss will be granted if there is competent evidence of a compensably disabling disorder within one year of separation from active duty. The Veteran contends that he has bilateral hearing loss as a result of his time in service. He told a VA examiner in January 2014 that he finds himself asking for repetition frequently and has the television volume up too high. As a police officer, he indicated that he has difficulty following radio communications due to his hearing loss. The Veteran’s service treatment records do not reflect any complaints, findings or diagnoses of a bilateral hearing loss. The Veteran’s entrance and separation examinations revealed that he had normal hearing for VA purposes. 38 C.F.R. § 3.385. At a VA audiological examination in January 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 25 LEFT 5 10 15 20 25 The average pure tone threshold for the right ear was 19, and the average pure tone threshold for the left ear was 18. Speech audiometry revealed speech recognition ability of 100 percent in each ear. These readings do not rise to the level of bilateral hearing loss disability under the provisions of 38 C.F.R. § 3.385. There is no competent evidence to the contrary, i.e., there is no evidence that the Veteran has a hearing loss as defined under 38 C.F.R. § 3.385, and there is no competent evidence linking such a disorder to the claimant’s active duty service. Because a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 was not demonstrated at the VA examination, and as there is no evidence of a compensably disabling sensorineural hearing loss within one year of the claimant’s separation from active duty there is no basis to grant service connection for this disorder. The claim is denied. Residuals of a traumatic brain injury The Veteran contends that he suffers from residuals of a traumatic brain injury due to service. Specifically, he states that he was in an air assault unit when he served, conducting missions in Cambodia and Vietnam, and that the “experiences [he] suffered during service are…causing elements of [his] disabilities.” The record reflects that his traumatic brain injury has been evaluated based on his “intense hostile exposure” in Vietnam. He complains of problems with memory, attention, and concentration. In March 2018, the Veteran underwent a VA examination for traumatic brain injury in conjunction with his claim for service connection. The examiner recorded that the Veteran was being evaluated for a traumatic brain injury due to intense hostile exposure in Vietnam. The examiner found that the claimant did not have, nor had he ever had, a diagnosis of a traumatic brain injury or residuals of a traumatic brain injury. She noted that that the Veteran endorsed having short term memory problems and misplacing things starting approximately one year prior to the examination. Testing, however, failed to reveal objective evidence of issues with memory, attention, concentration, and executive functions. Similarly, the examiner recorded that the Veteran’s judgment, social interaction, orientation, motor activity, visual/spatial orientation, neurobehavioral effects, communication, and consciousness were within normal limits with no subjective symptoms. The Veteran’s service treatment records are silent for any treatment or complaints of a head injury or subsequent traumatic brain injury. His entrance examination conducted in April 1969 did not make note of any disorder and he was subsequently found to be qualified for service. On his Report of Medical History, the Veteran did not make note of any medical problems either. Like his entrance examination, his April 1971 separation examination was silent for any complaint or diagnosis pertaining to a head injury or residuals thereof. The Veteran’s VA records also do not show treatment or complaints of traumatic brain injury. As such, the Board must deny the Veteran’s claim for service connection for traumatic brain injury for lack of diagnosis. An acquired psychiatric disorder to include a major depressive disorder The Veteran contends that he has depression because of his time in service. Specifically, he reports serving in Vietnam as a light weapons infantryman with an air assault unit. He states that his missions included duties in Cambodia and Vietnam, and that the “experiences [he] suffered during service are…causing elements of [his] disabilities.” The evidence shows that this combat Veteran has a current diagnosis of a depressive disorder without psychotic features. The appellant receives treatment for this condition through VA. Furthermore, the Veteran underwent a VA examination in March 2018 where the examiner diagnosed an unspecified depressive disorder. The Veteran has therefore met the first prong to qualify for service connection. As noted, the Veteran is a combat veteran. Therefore, pursuant to 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d), the Board accepts that the combat events the Veteran has consistently described as leading to his depression, namely his friend dying in his arms, occurred. Service connection for a psychosis will be granted if there is competent evidence of a compensably disabling disorder within one year of separation from active duty. Significantly, the Veteran’s service treatment records are silent for any psychiatric complaints or disorders. His April 1969 entrance examination did not note any psychiatric disorder, and he was found to be qualified for service. On his Report of Medical History, the Veteran did not make note of any pertinent problems. Similarly, his April 1971 separation examination was silent for any psychiatric or physical condition. The Veteran’s VA records do not show treatment or complaints of depression until December 2014; in fact, an October 2014 screening for depression noted that the Veteran indicated “not at all” when asked if he feels down, depressed, or hopeless. In December 2014, a treatment note recorded that the Veteran’s oldest son had passed away and the Veteran was feeling sad; he was subsequently prescribed medication. The Veteran filed his claim for service connection for depression several months after. In July 2015, a VA treatment note referenced that the Veteran discussed his time in Vietnam and the prejudice he experienced, as well as an occasion where his friend died in his arms. The Veteran endorsed thinking about this experience “all the time.” He continued to report depression in December 2015. At the time, he again expressed that he was thinking about his friend who died in Vietnam and said he kept reliving those scenes. Other notes reference the Veteran’s combat experience and his memories/flashbacks of that time. However, the VA examiner who conducted the March 2018 examination opined that it was less likely than not that the Veteran’s major depressive disorder was incurred in or caused by his service, to include combat exposure. She rationalized, “there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to the military service, during, nor psychiatric treatment within one year after discharge from the military service. The examiner noted that the Veteran sought formal psychiatric treatment around 2015, almost forty years after the active military discharge. The examiner further found no relationship between military service and the mental condition found in 2015, and that a temporal relationship between a neuropsychiatric disorder and the Veteran’s military service was not established. It was opined that the appellant’s unspecified depressive disorder bore no relationship to the appellant’s military service or any experience in Vietnam. The evidence of record preponderates against finding that an acquired psychiatric disorder to include a major depressive disorder is related to claimant’s time in service. In this case, there is no evidence of any complaints, findings or diagnosis pertaining to a psychiatric disorder during the appellant’s active duty service. Further, there is no competent evidence that a psychosis was compensably disabling within one year of the claimant’s separation from active duty. The Veteran’s VA treatment records and other documentation in his claims file are silent for any complaints or treatment of any psychiatric condition until December 2014 when his oldest son passed away. Thereafter, complaints of depression recounting his experiences in Vietnam began appearing in the record for the first time, over forty years post-service. Most notably, the VA examiner who conducted the March 2018 examination opined it was less likely than not that the Veteran’s condition was related to his time in service. There is no competent evidence to the contrary. As such, the Board must deny the Veteran’s claim for service connection for an acquired psychiatric disorder to include a major depressive disorder. The claim is denied. REASONS FOR REMAND Residuals of a perforated ear drum. Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. The record reflects that the Veteran was diagnosed with a tympanic membrane perforation in April 2015; the appellant filed his claim for service connection shortly thereafter. Service treatment records do not show treatment for this condition, but the Board acknowledges that the Veteran was exposed to heavy artillery fire during service as a combat infantryman. The etiology of this disorder has not yet been provided, nor has an examination been conducted. As such, the Board will remand on this issue to afford the Veteran the opportunity to present for an examination to determine the nature and etiology of his tympanic membrane perforation. The matter is REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records dating since May 2018 pertaining to his ears. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of any residuals of a perforated tympanic membrane. The Veteran’s VBMS and Virtual VA/Legacy files must be made available to and be reviewed by the examiner. The examiner must specifically address whether the Veteran has any residual of a perforated tympanic membrane to include scarring. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any such tympanic membrane perforation occurred in or is otherwise etiologically related to the Veteran’s military service. The examiner should consider the following: • the Veteran’s military occupational specialty as a light weapons infantryman; and • VA medical records, especially those from April 2015 documenting the tympanic membrane perforation. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required,   or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel