Citation Nr: 18148071 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-58 437 DATE: November 6, 2018 ORDER New and material evidence has been presented, and the claim for entitlement to service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In an unappealed November 1966 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for an acquired psychiatric disorder, finding that there was no nexus between his anxiety reaction with depressive reaction and that schizoid personality was not a disability under the law. In unappealed October 1976, January 2003, February 2003, and May 2011 rating decisions, the RO declined to reopen the Veteran’s claim, finding there was no new and material evidence presented. 2. The evidence received since the May 2011 rating decision is new and material since it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The May 2011 rating decision, finding new and material evidence had not been presented to reopen the Veteran’s claim for service connection for an acquired psychiatric disorder, is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.32, 20.200, 20.302, 20.1103. 2. The evidence presented since the May 2011 rating decision to reopen the claim for entitlement to service connection for an acquired psychiatric disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to October 1964. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision. In June 2018 the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. As will be discussed below, the Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for an acquired psychiatric disorder. The Board is required to determine its jurisdiction by addressing in the first instance the issue of whether the Veteran presented new and material evidence to support reopening his previously adjudicated claim. Any decision the RO made with regard to new and material evidence is irrelevant in regard to the Board’s jurisdiction. See Barnett v. Brown, 83 F.3d 1380, 1383–84 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (holding that the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous act of denying the claim was appealed to the Board). If the Board determines that new and material evidence was not presented, the adjudication of the underlying claim ends, and further analysis is neither required nor permitted. Therefore, despite the RO having determined already in this case that the Veteran presented new and material evidence sufficient to reopen his previously denied claim for service connection, the Board will proceed in the following decision to adjudicate the issue of new and material evidence. Claim to Reopen Generally, a claim which has been denied in an unappealed Board decision or an unappealed Regional Office decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b), 7105(c). The exception is when new and material evidence is presented or secured, see 38 U.S.C. § 5108; 38 C.F.R. § 3.156, which Congress intended to be a low threshold, Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (holding that the law should be interpreted as enabling reopening of a claim, rather than precluding it). Existing evidence not previously before agency decision makers is “new evidence.” 38 C.F.R. § 3.156(a). “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.” Id. The proffered evidence cannot be cumulative or redundant “of the record evidence 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.” Id. The phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance in determining whether submitted evidence meets the new and material requirements. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the evidence must be presumed credible. Shade v. Shinseki, 24 Vet. App. 110, 122 (2010); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). New evidence may be sufficient to reopen a claim if it contributes 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 a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that corroborates record evidence is not cumulative or redundant. Paller v. Principi, 3 Vet. App. 535, 538 (1992). VA’s duty to assist in providing a medical examination does not attach unless the claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). If the Board finds that new and material evidence has been presented and reopens the claim, after ensuring that VA’s duty to assist has been fulfilled, the Board may proceed to evaluate the merits of the claim. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In June 1966, the Veteran filed a claim for service connection for an in-service nervous breakdown. The evidence consisted of the Veteran’s service treatment records and a report of a July 1966 VA examination along with an October 1966 addendum. In an unappealed November 1966 rating decision, service connection for nervous breakdown was denied due to lack of a nexus between the Veteran’s post-service diagnosis of anxiety reaction and his in-service events. In unappealed rating decisions in October 1976, January 2003, February 2003, and May 2011, the RO declined to reopen the Veteran’s claim for service connection for anxiety reaction with depressive reaction and schizoid personality, finding that new and material evidence had not been presented. These rating decisions became final. In May 2016, the Veteran filed a claim to reopen his claim for service connection for depressive disorder. In a July 2016 rating decision, the RO declined to reopen the claim, which the Veteran appealed in a July 2016 notice of disagreement. In a November 2016 statement of the case, the claim was reopened with the RO finding that a January 2015 record of a mental health evaluation by VA, during which the Veteran was diagnosed with major depressive disorder, was new and material evidence. The claim was denied on the merits due to a lack of evidence linking his major depressive disorder to his active service. The Veteran perfected this appeal. The question for the Board, therefore, is whether the evidence presented since the May 2011 rating decision constitutes new and material evidence as to support reopening the Veteran’s claim for service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (calling for the broadening of claims to include any mental disability that may be reasonably encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). The Board notes that in a June 2018 statement in support of claim, the Veteran waived RO consideration of evidence presented after this appeal was certified to the Board. See 38 C.F.R. § 20.1304(c). After careful and thorough review of the evidence of record, the Board finds that new and material evidence has been presented and reopening of the Veteran’s claim is warranted. In addition to VA medical records showing the Veteran’s mental health treatment, he presented a June 2018 positive nexus statement from a treating psychologist, and June 2018 statement in support of claim for posttraumatic stress disorder (PTSD). As this evidence addresses the nexus between the Veteran’s current disability and his active service, the Board finds that new and material evidence has been presented to support reopening the claim because this evidence had not previously been before the agency decision maker and it relates to an unestablished fact necessary to substantiate the claim. Accordingly, the claim to entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, which was diagnosed as anxiety reaction, passive-aggressive personality, and schizoid personality while in service and, more recently, as major depressive disorder, adjustment disorder with depressed mood, and PTSD. In June 1966, the Veteran claimed for service connection for a nervous breakdown he experienced while in service. His service treatment records show that in September 1964, while being evaluated on the USS Grand Canyon, the Veteran reported being concerned about his sister’s welfare and being afraid she might get into trouble. He was diagnosed with anxiety reaction and prescribed medication. It was recorded the next day that the Veteran reported the real reason for seeking help was because the crew seemed to continually pick on him, calling him strange and queer. He reported that the ribbing was continual and unrelenting, and he felt that he could not take it anymore. He reported having thought of suicide. It was noted that he felt quite nervous and his hands shook and that he was immature physically and socially. He was diagnosed with passive-aggressive personality. The following day a consultation request was made to the naval hospital, explaining that the Veteran had been seen for the past two days for “nervousness,” and he was unable to or did not want to control his bowel movements. In October 1964, a report of board of medical survey at the naval hospital shows that the Veteran reported recently having been singled out by other men by being called derogatory names and not being able to tolerate it. It was noted that personal hygiene became an issue. The report shows that he was observed on a closed ward for three weeks and then transferred to an open ward. The Veteran reported nervousness prior to entering service. There was an impression of a passive, immature male with many unresolved conflicts. It was noted that when he talked about his life on shipboard, the Veteran became visibly tense and began to exhibit many bodily tics and twitches. It was noted that there was no evidence of psychotic thought or behavior. He was found to have had severe schizoid personality, which impaired functional usefulness in service. In July 1966, the Veteran was afforded a VA examination, and in an October 1966 addendum, the examiner addressed the Veteran’s diagnoses. It was explained that schizoid personality is not a diagnosis, rather, it is a characterization of personality and not a psychiatric illness. It was stated that such individuals are prone to develop psychiatric reactions under stress. It was stated that anxiety reaction was the correct diagnosis of the Veteran’s condition, which the examiner made during the July 1966 VA examination. It was stated that the diagnosis of anxiety reaction after service was not a maturation of or development of the service diagnosis of schizoid personality. Anxiety reaction was a psychiatric illness entity or reaction super imposed upon his service diagnosis of schizoid personality. A May 1969 letter from Rochester State Hospital (State of New York, Department of Mental Hygiene) shows that the Veteran was placed on convalescent care in April 1969 in the custody of himself. During the June 2018 hearing, the Veteran stated that after service he was treated twice as an inpatient, once for three weeks and once for one month, at M&S Mental Institute, Rochester, New York. He believed this was in the 1970s. VA treatment records show that in January 2015, the Veteran was found to meet the diagnostic criteria under DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition) for recurrent moderate major depressive disorder. In a June 2018 statement in support of a claim for service connection for PTSD, as to a first incident occurring in June 1964, the Veteran stated that when returning from liberty to the USS Massey (DD 778), as he was going to his quarters, he inadvertently saw several sailors engaged in gang sex with a friend. He stated that he “became horrified, terrified, very fearful, and immediately left the area.” He stated that he became isolated, stayed away from others, became guarded, and to protect himself, he slept on the floor. He stated that he became a nervous wreck and had a nervous breakdown. As to the second incident, he reported that in September 1964 while on the USS Massey, he had been experiencing increased tension and stress because the men seemed to continually pick on him and were calling him derogatory names such as “strange” and “queer.” He stated that the ribbing was continual and unrelenting and he could not take it any longer so he sought a clinical consultation for anxiety. In a general statement in June 2018, the Veteran stated that he did not remember being taken off his ship or much of his time at the naval hospital. He stated that a year after his discharge he was admitted to Rochester Psychiatric Center in Rochester, New York, for the same symptoms he had in service. He stated he was hospitalized for three weeks and given medication. He stated that about a year later he was hospitalized for six weeks at the same facility for the same symptoms. He stated that since service, he has always been diagnosed with major depressive disorder. In a June 2018 letter, Dr. V.W.B, a treating psychologist of the Veteran, stated that he was intimately familiar with the Veteran’s history and functional limitations imposed by his emotional health-related issue. It was stated that, while it was not clear that the Veteran’s military service was the sole cause of his mental health difficulties, it was clear that the stress and dysfunction that occurred during his service led to a pattern of intermittent depression and anxiety from that point forward. Dr. V.W.B. stated that he used diagnoses of adjustment disorder with depressed mood while treating the Veteran. He also stated that a diagnosis of PTSD would be more accurate. Having reopened the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, VA’s duty to assist with the provision of a medical examination has attached. 38 C.F.R. § 3.159(c)(4)(iii); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The Veteran has not been afforded a VA examination since that provided in July 1966. Therefore, on remand, a VA examination is required to determine the nature and etiology of the Veteran’s current acquired psychiatric disorder. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, the evidence of record does not indicate that attempts were made by VA to obtain the Veteran’s medical records from the Rochester State Hospital for the Veteran’s treatment received between 1965 and 1970. Furthermore, the most recent ongoing VA treatment records are from November 2016 but the Veteran testified in June 2018 that he has had ongoing care. Accordingly, on remand, these records should be obtained and associated with the claims file. 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for hearing loss is remanded. The Veteran contends that his bilateral hearing loss is the result of in-service noise exposure, and as such, he seeks service connection. In June 2016, the Veteran was afforded a VA examination, during which his speech recognition score in the right ear was 94 percent and in the left ear was 94 percent. The following puretone thresholds were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 30 65 LEFT 10 25 15 40 65 The examiner indicated that the puretone test results were valid for rating purposes and that the use of speech recognition scores was appropriate for this Veteran. He was diagnosed with bilateral sensorineural hearing loss, and the Board finds that he has hearing loss for VA purposes. See 38 C.F.R. § 3.385 (“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”). During the examination, the Veteran reported that he was a radio operator during service and that he was exposed to gunmount firing and radio static noise. During the June 2018 hearing, the Veteran testified that as a radioman he had to deliver messages to officers around the ship and that, while he waited for them to read and sign the messages, he was exposed to the noise from gunfire and cannons, particularly five-inch guns. He stated that the noise from the five-inch guns was the loudest thing he ever heard. He stated that he was exposed to this noise for 10 to 20 minutes at a time, which occurred once or twice per month. He stated that he was not provided with hearing protection. He stated that he first noticed loss of hearing acuity in approximately 1965/1966 when he started having trouble hearing high pitch tones, high pitch women’s voices, the television, and on the telephone. He explained that because he was separated from service directly from being discharged from the hospital, he was not given an audiological examination when he left service. The examiner stated that he could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation because the only hearing examination in the Veteran’s service treatment records was performed during his enlistment physical in July 1963. It was stated that without additional hearing test data while the Veteran was on active duty it was impossible to determine whether military noise affected his hearing. The Board finds the opinion in the June 2016 VA examination report inadequate for failing to provide a well-articulated rationale for the opinion, citing to the record and providing a medical explanation that the Board can utilize in making a fully informed decision. See Nieves–Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Barr v. Nicholson, 21 Vet. App. 303, 307–11 (2007); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Hence, on remand, the Veteran must be afforded another VA examination to determine the etiology of his present bilateral hearing loss, taking into account his statements about noise exposure, onset of symptoms, the record evidence, and accepted medical principles. These matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination of any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all records of treatment or examination from all the sources listed by the Veteran (VA and private facilities) which are not already on file, including records from the Rochester State Hospital (State of New York, Department of Mental Hygiene) for the period 1965 to 1970, and VA records since November 2016. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If any records cannot be secured, provide the required notice and opportunity to respond to the Veteran and his representative. If possible, to expedite the case, the Veteran should submit these records himself. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, particularly the evidence noted in the body of this Remand. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any psychiatric disorder that has been present during the appeal period or within close proximity thereto. If the examiner disagrees with a prior diagnosis in the record, the examiner should explain why such a diagnosis is not warranted. For each diagnosis identified, the examiner should then offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the disability existed prior to service. The examiner must provide a complete rationale for any opinion offered. If the examiner finds that the Veteran’s disability clearly and unmistakably existed prior to service, then the examiner is requested to offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the pre-existing disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disability. If the examiner finds that a disability did not clearly and unmistakably exist prior to service, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disability is related to active service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The examiner should explain the relationship, if any, between the Veteran’s in-service diagnoses of anxiety reaction and schizoid personality and his current diagnosis, as well as the October 1966 addendum to the July 1966 VA examination, which explained that schizoid personality was not a diagnosis but a characterization of personality and that anxiety reaction was a psychiatric illness that was super imposed upon this personality. Regarding PTSD, the Agency of Original Jurisdiction should provide the examiner with a summary of the Veteran’s combat stressors and any other verified in-service stressors. The examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria under DSM-5 to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any in-service stressor. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. 3. Schedule the Veteran for a VA examination to determine the etiology of his present bilateral hearing loss. The electronic claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements, particularly as recited above; the examiner must indicate on the examination report that such review was undertaken. The audiometry examination must include a speech recognition test using the Maryland CNC wordlist and a puretone audiometry test. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology and in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s present bilateral hearing loss disability was caused or aggravated by his active service, including noise exposure therein. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. A thorough explanation for any opinion must be provided. The examiner should note that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney