Citation Nr: 18148751 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-14 888 DATE: November 8, 2018 ORDER New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for left ear hearing loss. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right ear hearing loss. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected hiatal hernia with GERD and esophagitis is remanded. Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran was denied service connection for left hearing loss in an August 2012 rating decision. The Veteran was notified of the August 2012 rating decision, but did not file a notice of disagreement and no new and material evidence was received within one year of notice of that decision. 2. The evidence added to the record since the August 2012 rating decision for the left ear is new but does not relate to an unestablished fact necessary to substantiate the claim for service connection for left ear hearing loss, is cumulative or redundant of the evidence of record in August 2012, and otherwise does not raise a reasonable possibility of substantiating the claim. 3. The Veteran was denied service connection for right ear hearing loss in an August 2012 rating decision. The Veteran was notified of the rating decision but did not file a notice of disagreement and no new and material evidence was received within one year of notice of that decision. 4. The evidence added to the record since the August 2012 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a right ear hearing loss disability. 5. The Veteran does not have a psychiatric disability that has been shown to be etiologically related to his military service. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied service connection for left ear hearing loss is final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The August 2012 rating decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2018). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for right ear hearing loss disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to April 1977 and from January 1979 to December 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2012 (PTSD), October 2013 (hiatal hernia/GERD, sleep apnea) and October 2015 (hearing loss) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in March 2018. During the hearing, the record was held open for 60 days to allow the Veteran to submit evidence, specifically positive nexus opinions, with regard to his service connection claims on appeal. The 60 days have expired and no such evidence was received. New and Material Evidence To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA. 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. 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, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. See id. at 120-23. 1. Whether new and material evidence has been submitted to reopen the claim of service connection for left ear hearing loss. Having carefully reviewed the record, the Board finds that new and material evidence has not been submitted to reopen the previously denied claim for service connection for left ear hearing loss. The Veteran’s initial claim for left ear hearing loss was denied in an August 2012 rating decision. The claim was denied because there was no evidence indicating that the Veteran’s left ear hearing loss disability was caused or related to service. At that time the evidence included service treatment records and service personnel records, the Veteran’s claim and personal statements, VA treatment records from the Dallas VAMC and a March 2012 VA examination. Thereafter, the Veteran failed to submit a notice of disagreement to the rating decision and no new and material evidence was received within one year of notice of that decision; therefore, the August 2012 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). In September 2015 the Veteran filed a claim to reopen his service connection claim for a hearing loss disability. Evidence in support of the Veteran’s request to reopen his claim for hearing loss includes updated treatment records from the North Texas VAMC and March 2018 testimony from the Board hearing. The record still fails to show that the Veteran’s hearing loss disability was incurred in service. Therefore, while “new,” these records associated are not material. In summary, the element which was missing at the time of the August 2012 denial of service connection for left ear hearing loss, relationship of the disability to service, remains lacking for the Veteran’s left ear hearing loss. New and material evidence has not been received, and the Veteran’s claim of entitlement to service connection for left ear hearing loss may not be reopened. The benefit sought on appeal remain denied. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for right ear hearing loss. In August 2012 the RO denied the Veteran’s original claim for entitlement to right ear hearing loss. The claim was denied because the evidence failed to show that such had been clinically diagnosed. The Veteran did not submit a notice of disagreement with this August 2012 rating decision. No new and material evidence was received by the VA within one year of the notice of this rating decision. As such, the August 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). The Veteran filed a claim to reopen in September 2015. Since the August 2012 RO decision, the Veteran has sought treatment at the North Texas and Dallas VAMC and further testified at a March 2018 Board hearing. In December 2015 the Veteran was diagnosed with mild sensorineural hearing loss of the right ear. See Dallas VAMC Treatment Record. The Veteran further reported at his March 2018 Board hearing that his hearing has worsened to the point of needing hearing aids, and that he needs to have his hearing checked every two years. This evidence is new and material evidence because it was not of record at the time of the final RO decision in August 2012, and indicates the Veteran might have a current right ear hearing loss disability. The Board finds this evidence would trigger VA’s duty to provide an examination and opinion in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to compensation for a right ear hearing disability. See Shade, 24 Vet. App. 110. Service Connection 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran has asserted that while stationed at the Pope Air Force Base he was sexually assaulted by an officer on a Friday night. He specified that the officer offered him a ride after a game night and then proceeded to take him to his trailer and sexually assault him. He reported that due to the trauma he is not able to have normal intimacy in his life and this has led to his being in prison. In general, establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Veteran’s claimed stressor has been conceded for purposes of this decision. The Veteran’s service treatment records are absent for diagnoses of any acquired psychiatric disorder. In July 1983, he was diagnosed with passive dependent/compulsive personality disorder. His December 1987 separation report of medical examination did not contain any diagnoses for an acquired psychiatric disorder, nor did he report any symptoms on the accompanying report of medical history. At the outset, the Board points out that a personality disorder is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. 38 C.F.R. § 3.303(c). As VA regulations specifically prohibit service connection for congenital or developmental defects, the Veteran's personality disorder is not a disability for which VA compensation benefits may be awarded. The Veteran had a VA examination in January 2015 to evaluate his claim for PTSD. Following examination and review of the claims file, the examiner determined that the Veteran failed to meet the criteria for PTSD under either the DSM IV or V criteria. The examiner considered the Veteran’s in-service stressor when making this determination. The examiner further opined that it was less likely than not that his symptoms of depression were related to his military experiences or reported sexual trauma. Rather, they were more likely related to his post military life stressors, including incarceration for child sexual abuse, unstable housing, finances, unemployment, and legal. The Board affords this opinion probative value as it is based on a review of the claims file, consideration of the Veteran’s stressor, clinical evaluation of the Veteran, and relied on other evidence in the claims file, to include records dated in November 2011 and March 2012, which reflect that PTSD screens were negative. In summary, there is no probative evidence of record reflecting that the Veteran has an acquired psychiatric disorder, to include PTSD, that has been shown to be etiologically related to his military service, to include his sexual assault, by a competent provider. As reflected above, the Board held the record open for 60 days following the hearing to afford the Veteran an opportunity to submit evidence linking his claim to service. However, he did not submit such evidence. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran’s claim of entitlement to service connection for sleep apnea must be remanded for further evidentiary development. VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. See McClendon, 20 Vet. App. at 83. The Veteran contends that his sleep apnea began during service and has continued since. Specifically, he asserts that the condition manifested through symptoms of disturbed sleep, sleepiness, falling asleep during the day and snoring, which he believes were symptoms of sleep apnea. See July 2013 Veteran’s 21-4138 statement. Service treatment records are negative for complaints of or a finding of sleep apnea. Despite this, the Veteran is competent to state what he experienced during service. A June 2012 record from Dr. T.K. reflects a diagnosis of obstructive sleep apnea. As the Veteran has not been afforded a VA examination to specifically determine the current nature and etiology of the claimed disability, he must be provided such an examination on remand. See McLendon. 2. Entitlement to an evaluation in excess of 10 percent for service-connected hiatal hernia with GERD and esophagitis is remanded. The Veteran contends that he is entitled to an increased rating for his service-connected GERD. Before a decision can be reached on this claim, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). As an initial matter, the Board notes that the Veteran testified at his March 2018 Board hearing that he has received recent treatment for his GERD, and that such has worsened in the form of an ulcer and arm pain. As there is an indication that his GERD has worsened since his last VA examination in August 2012, a remand is necessary. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997); VAOPGCPREC 11-95 (1995). 3. Entitlement to service connection for right ear hearing loss disability is remanded. Regarding the right ear hearing loss, a new VA examination and opinion is necessary to clarify whether the Veteran has a diagnosis of right ear hearing loss and whether such is related to his service. The Veteran was provided VA audiological examinations for his bilateral hearing loss in March 2012. After examination of the Veteran, the examiner found that there was not right ear hearing loss for VA purposes. However, the Veteran testified at a March 2018 Board hearing that his hearing loss has worsened since the examination, such that he believes hearing loss for VA purposes now exists in the right ear, pursuant to January 2015 treatment at the Dallas VAMC. In light of such treatment record, the Board finds that the Veteran should be afforded another VA examination to determine if his hearing loss has risen to the level sufficient for VA purposes and if such is related to his service. The matters are REMANDED for the following action: 1. Obtain any additional VA or private treatment records identified by the Veteran pertaining to the claims on appeal. 2. Thereafter, the AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current sleep apnea. The claims folder must be reviewed in conjunction with the examination. For purposes of this examination, the examiner should consider the Veteran’s reports of disturbed sleep, sleepiness and snoring to be credible. For the Veteran’s claimed sleep apnea, the examiner should: (a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran has a current sleep apnea disability that is etiologically related to the Veteran’s active service. (b) Explain the significance of the Veteran’s history of reported symptoms such as snoring, sleepiness and falling asleep during the day, if any, in regard to his sleep apnea disorder. The examiner should indicate whether the Veteran’s report of symptoms represents an early manifestation of later diagnosed sleep apnea as suggested by the Veteran. A full and complete rationale for any opinion expressed is required. 3. After any additional records are associated with the claims file, afford the Veteran a VA examination with an appropriate medical examiner to determine the current nature and severity of his service-connected GERD. The examiner should also address the functional impact the Veteran’s GERD has on his ability to maintain employment. The claims folder, including a copy of this remand, must be made available to, and reviewed by, the examiner. All tests and studies deemed necessary by the examiner should be performed, and the VA examination report should comply with all appropriate protocols for rating GERD. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA audiological examination to determine the etiology of his claimed right ear hearing loss. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. A supporting explanation must be provided for all opinions. Based on the review and the audiological examination, the examiner must render an opinion as to the following: (Continued on the next page)   (a) Whether the Veteran has a right ear hearing loss disability for VA evaluation purposes i.e. the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. (b) If the Veteran has a right ear hearing loss for VA evaluation purposes, whether it is at least as likely as not (a 50 percent or greater probability) that the current hearing loss is causally or etiologically related to his service, including any reports of in-service noise exposure. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel