Citation Nr: 18149118 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 520 DATE: November 8, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened and to that extent, the appeal is allowed. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disease (PTSD) is reopened and to that extent, the appeal is allowed. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is remanded. FINDINGS OF FACT 1. In unappealed September 2006, May 2011, and December 2011 rating decisions, the Regional Office denied entitlement to service connection for bilateral hearing loss, tinnitus, and PTSD, respectively. 2. New and material evidence was not associated within one year of the decisions and they became final. 3. Evidence received since the final September 2006, May 2011, and December 2011 rating decisions relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hearing loss, tinnitus, and PTSD. 4. The evidence is at least in equipoise that the Veteran has tinnitus incurred in service. CONCLUSIONS OF LAW 1. The September 2006, May 2011, and December 2011rating decisions that denied service connection bilateral hearing loss, tinnitus, and PTSD, respectively, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claims for entitlement to service connection for bilateral hearing loss, tinnitus, and PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1967 to January 1971. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript has been associated with the claims file. Applications to Reopen The Veteran seeks to reopen claims of entitlement to service connection for bilateral hearing loss, tinnitus, and PTSD. A September 2006 rating decision denied bilateral hearing loss because service treatment record did not reveal hearing loss and an examination report revealed a report that the Veteran’s hearing loss started 25 years after service. A May 2011 rating decision denied tinnitus, confirming a prior decision that denied based upon a lack of tinnitus in service treatment records and an examination indicating a report that the tinnitus began 25 years after separation from service. A December 2011 rating decision denied PTSD, in part, on the basis that there was no diagnosis of PTSD. The question before the Board is whether new and material evidence has been submitted to reopen the claims. Since the previously final rating decisions, the Veteran testified at his hearing before the undersigned that his hearing loss began 20 years prior, that he was around the flight line in service, that he worked in enclosed spaces with metal banging on metal, that he was not provided any hearing protection in service, and, importantly, that he was self-employed after service working in air conditioning and refrigeration and was not exposed to loud noise after service. The Veteran further testified that he first noticed the ringing in his ears years back but did not know what it was. He stated that it was there ever since he returned from service. Subsequent to the prior final denial, in a statement dated in January 2017, the Veteran was noted to be diagnosed with PTSD by a readjustment counseling therapist. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to unestablished facts necessary to substantiate the Veteran’s claims. Evidence of record at the time of the September 2006 denial of service connection for bilateral hearing loss included a negative nexus opinion. As of the May 2011 denial of service connection for tinnitus, the record contained a negative nexus opinion. As of the December 2011 denial of entitlement to service connection for PTSD, the record contained a VA examination that did not diagnose PTSD. The new evidence provides additional discussion of the Veteran’s exposure to loud noise post service and, thus, whether bilateral hearing loss is related to the Veteran’s active service. The new evidence identifies that the Veteran indicates that he has had tinnitus since service. Finally, the new evidence identifies a diagnosis of PTSD. The evidence is neither cumulative nor redundant of the evidence of record at the time of the prior rating decisions and raises reasonable possibilities of substantiating the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the tinnitus claim is addressed in decision here; the hearing loss and PTSD claims are addressed in the remand. Service Connection The Veteran seeks entitlement to service connection for tinnitus and contends that his tinnitus is due to exposure to loud noise in service. The Board concludes that the Veteran has a current diagnosis of tinnitus that began in or is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran was afforded a VA examination in August 2006. The examiner noted that the Veteran denied tinnitus. However, the examiner reported that the Veteran indicated that he had ringing in both ears that began eight years prior to the examination. The examiner rendered the opinion that the Veteran’s tinnitus was not related to his reported military noise exposure. The rationale was that the onset time was 25 years after service based upon the Veteran’s report. However, the examiner further noted that the claims file was not reviewed. In an August 2005 treatment note the Veteran denied tinnitus. At the hearing before the undersigned the Veteran discussed his exposure to loud noise in service working around aircraft. In addition, the Veteran reported that he did not have hearing protection in service and that his work after service did not expose him to loud noise. The Veteran reported that he had first noticed ringing in his ears years before but that he did not know what it was. He further reported that the ringing in his ears had been there since he had come back from service. Entitlement to service connection for tinnitus is warranted. The Veteran was exposed to loud noise in service and has been noted to have tinnitus. The Board acknowledges that the Veteran denied tinnitus in a VA treatment note and a VA examination found the Veteran’s tinnitus was not associated with the Veteran’s active service. However, the Veteran is competent to report that he has had ringing in his ears since service. Further, the Board finds the Veteran’s statement of initially not knowing what the ringing in his ears was and his reports that he has had the ringing in his ears since service, to be credible. As such, the evidence is at least in equipoise that the Veteran’s tinnitus was incurred in service, and service connection for tinnitus is granted. REASONS FOR REMAND At the hearing before the undersigned, the Veteran’s representative indicated that treatment records from VA dated since 2013 were not associated with the claims file. In a January 2017 statement it was noted that the Veteran received treatment from the Beaumont VA Outpatient Clinic and the that he had received treatment at the Jefferson County Vet Center since July 2011. Review of the claims file does not reveal VA treatment records dated since December 2011 and does not reveal any Vet Center treatment records other than the January 2017 statement. As such remand is necessary to allow VA to obtain all VA treatment records regarding the Veteran dated since December 2011 and, after obtaining any necessary authorzation, all treatment records regarding the Veteran from the Jefferson County Vet Center. 38 C.F.R. § 3.159. Review of the claims file reveals a Social Security Administration (SSA) Notice of Award dated in March 2008. The statement indicates that the Veteran was entitled to monthly disability benefits beginning July 2008. Review of the claim file does not reveal that an attempt has been made to obtain the Veteran’s complete SSA records. Because SSA records are potentially relevant to the Board’s determination, any available SSA records should be obtained on remand. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Veteran was afforded a VA examination regarding bilateral hearing loss in August 2006. The examiner rendered the opinion that the Veteran’s bilateral hearing loss was not due to his reported military noise exposure. However, the rationale relied solely upon the passage of time from separation from service to the noted onset of hearing loss. As such, the opinion is not adequate and the claim must be remanded for the Veteran to be afforded another examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The reopened issue of entitlement to service connection for PTSD has been recharacterized above as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was afforded a VA examination regarding an acquired psychiatric disorder in September 2011. The examiner diagnosed the Veteran with depressive disorder. However, the examiner did not offer an opinion regarding the etiology of the Veteran’s diagnosed depressive disorder. As such, the claim must be remanded for the Veteran to be afforded another VA examination and for an etiology opinion to be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period beginning December 2011. 2. Ask the Veteran to complete a VA Form 21-4142 for the Jefferson County Vet Center. After authorization is received, obtain all treatment records regarding the Veteran from the Jefferson Count Vet Center. Document all requests for information as well as all responses in the claims file. 3. Take all appropriate action to obtain from the SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. 4. Ask the Veteran to provide a comprehensive statement containing as much detail as possible regarding any claimed stressors for PTSD. Then, undertake all necessary efforts to attempt to verify the Veteran’s stressors based on his response. 5. After completion of all the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss found to be present. The examiner must opine whether it is at least as likely as not any bilateral hearing loss found to be present is related to an in-service injury, event, or disease, including exposure to loud noise in service. 6. Schedule the Veteran for a VA psychiatric examination to determine the current nature and likely etiology of any diagnosed disability. The claims folder and copies of all pertinent records should be made available to the examiner for review. a. Prior to the examination, the RO must specify for the examiner the stressor or stressors that it is determined are established by the record, and the examiner must be instructed that only those events may be considered for the purpose of determining whether the veteran was exposed to one or more stressors in service. b. The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present. Any further indicated special studies, including psychological studies, should be accomplished. c. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiner. d. If the examination results in a psychiatric diagnosis other than PTSD, to include a diagnosis of depressive disorder, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran’s military service. A complete rationale should be given for all opinions and conclusions expressed. The claims file must be made available to the examiner for review in conjunction with the examination. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel