Citation Nr: 18149315 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-32 288 DATE: November 9, 2018 ORDER New and material evidence having not been submitted, the claim to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence having been submitted, the claim to reopen a claim of entitlement to service connection for depression is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. In a February 2007 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral hearing loss, finding that the Veteran did not have hearing loss impairment as defined by VA law. In October 2009, the RO denied a claim to reopen a claim of entitlement to service connection for bilateral hearing loss. Additional evidence was added to the claims file within one year, so the RO issued a February 2010 rating decision, which again denied reopening the Veteran’s claim for hearing loss. The Veteran did not appeal the February 2010 decision and new and material evidence was not received within the one-year appeal period. 2. New evidence tending to prove previously unestablished facts necessary to substantiate the underlying claim of entitlement to service connection for bilateral hearing loss have not been received since the February 2010 decision, and does not raise a reasonable possibility of substantiating the claim. 3. In a February 2007 rating decision, the RO denied service connection for depression. In July 2008, the RO denied service connection for “stress.” The Veteran did not appeal the July 2008 decision and new and material evidence was not received within the one-year appeal period. 4. Evidence associated with the record since the July 2008 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. A February 2010 rating decision that denied reopening the Veteran’s claim for service connection for bilateral hearing loss is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.200 (2017). 2. New and material evidence has not been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from February 1979 to February 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The March 2012 rating decision addressed whether new and material evidence had been submitted to reopen claims of entitlement to service connection for depression and bilateral hearing loss, as well as a claim of entitlement to service connection for PTSD. The Board will reopen the claim of entitlement to service connection for depression and combine it with the Veteran’s PTSD claim to reflect an overall claim of entitlement to service connection for an acquired psychiatric disorder. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. 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. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its ratings decision.” Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). 1. New and material evidence having not been submitted, the claim of entitlement to service connection for bilateral hearing loss In February 2007 the Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied because he was not treated for or diagnosed with an ankle disorder in service, and his current hearing did not meet VA legal standards for a hearing loss disability. An October 2009 rating decision found that the Veteran had not submitted new and material evidence to reopen his hearing loss claim as the record did not demonstrated hearing loss disability for VA purposes. The Veteran underwent an audio evaluation in November 2009, so the RO issued another rating decision in February 2010. The February 2010 rating decision denied reopening the Veteran’s claim, as there continued to be no evidence of hearing impairment for VA purposes. The Veteran did not perfect an appeal to the February 2010 decision, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Hearing impairment as defined by VA regulations is acceptable when the puretone thresholds for at least one of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or above; or at least three of these frequencies are 26 decibels or higher; or speech recognition scores are less than 94 percent using the Maryland CNC Test. At the time of the February 2010 rating decision the record contained the Veteran’s service treatment records, some post-service treatment records, the Veteran’s statement regarding his hearing, a January 2007 VA examination, and a November 2009 hearing test. The Veteran’s service treatment records did not include a diagnosis of hearing loss, although to lay observation he had a decrease in hearing. The January 2007 VA examination did not show that the Veteran had hearing loss impairment for VA purposes. The examiner assessed normal right ear hearing from 250 to 4000 Hertz and mild sensorineural hearing loss from 6000 to 8000 Hertz; his left ear hearing was normal throughout. He had excellent speech discrimination scores (100 percent bilaterally). The examiner provided a positive opinion that the Veteran’s “hearing loss and tinnitus were caused by acoustic trauma from jet aircraft on the flight deck while in the Navy.” In August 2009, the Veteran stated that he thought his hearing had worsened since his 2007 examination. He had trouble hearing people during conversations and he kept the volume high to watch television or listen to the radio. In November 2009, the Veteran underwent a hearing evaluation as part of his treatment through VA. The physician noted that the tested showed “essentially no changes in hearing since the last exam in 2007.” His right ear had normal hearing from 250 to 6000 Hertz, and mild hearing loss at 8000 Hertz. His left ear showed hearing within normal limits from 250 to 8000 Hertz. He had excellent word recognition bilaterally. A December 2009 VA treatment record noted that the Veteran was being worked up for episodes of dizziness, but that “the audiograms are symmetrical and normal bilaterally, including the tympanometry;” the physician did not think that his dizziness was related to his ears. Records received since the February 2010 rating decision included ongoing VA treatment records through 2016. The ongoing treatment records do not include any complaints or treatment related to hearing loss or ear symptoms. The Veteran did not provide any lay statements which may have described worsening symptoms. The Veteran’s November 2011 claim to reopen did not include any arguments or details. Although new evidence has been associated with the claims file/virtual record since the February 2010 decision, this new evidence is not material, as it does not raise a reasonable possibility of substantiating the Veteran’s claim. See 38 C.F.R. § 3.156 (a). The Veteran’s claim for service connection for a hearing loss disability was denied in February 2010 because the medical evidence continued to show that he did not meet the criteria for a hearing loss disability based on VA standards. New evidence added to the claims file included ongoing VA treatment records without complaint or treatment related to hearing loss and without additional audiometric testing, and did not include any statements from the Veteran related to a change or increase in signs/symptoms related to hearing loss. See Walker v. Shinseki, 708 F. 3d 1331, 1338-9 (Fed. Cir. 2013); 38 C.F.R. § 3.156 (a). The Veteran has been represented throughout his claim period and has provided no new and material medical evidence of a current disability. The evidence does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). As new and material evidence to reopen the previously denied claim of service connection for hearing loss has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. New and material evidence having been submitted, the claim of entitlement to service connection for depression is reopened In February 2007, the Veteran’s claim of entitlement to service connection for depression was denied because he was not treated for or diagnosed with a chronic nervous or depressive disorder in service. He was noted to have a current “history of depression.” In July 2008, the RO denied entitlement to service connection for “stress;” because the record did not show he had a chronic disability which occurred in or was caused by service. His service medical records did not include a diagnosis of a chronic nervous condition, and clinical evidence did not include diagnosis of a chronic mental condition, manifested by stress, which a relationship to service (no in-service treatment, no diagnosis of a “stress” disorder, and no nexus to service). The Veteran did not perfect an appeal to the July 2008 decision, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). At the time of the July 2008 rating decision, the record contained the Veteran’s service treatment records, and post-service VA treatment records. Private treatment records contained in the claims file are not pertinent to the Veteran’s claims currently on appeal (cardiac). His service treatment records do not include notation of complaints or treatment related to the Veteran’s mental health. Post-service treatment records include an assessment of depression in September 2006. The Veteran stated that his depression was situational, “due to some deaths in the family” and he declined intervention. Since the July 2008 rating decision, the Veteran underwent a VA examination, ongoing VA treatment records through 2016 were added to the claims file, and he provided statements related to stressful incidents he witnessed in service. Ongoing treatment records included some psychiatric treatment, with diagnoses of PTSD, depressive disorder, and anxiety disorder. In October 2010, the Veteran provided a statement of witnessing two fellow sailors injured while working on the flight deck of an aircraft carrier. A February 2012 JSRRC (Joint Services Records Research Center) memo found that the stressors should be conceded given the low threshold for determinations, and that the Veteran should be afforded a VA examination for a medical determination as to whether the stressors might meet the criteria for a diagnosis of PTSD. The June 2016 VA examination diagnosed depressive disorder with anxious distress. The medical opinion addressed only the Veteran’s claim of entitlement to PTSD, and found that he did not meet the criteria for a diagnosis of PTSD under the DSM-V. The Board finds that the evidence added to the claims file from July 2008 is new and material. The evidence is new in that it was not before decision-makers at the time of the 2008 decision, and is not duplicative of evidence before them. The evidence is material as it addresses a diagnosis of depressive disorder, stressful incidents he reported were conceded by JSRRC, and he complained of having dreams related to those stressful events. The low threshold for finding new and material evidence has been met, and the claim of entitlement to service connection for depression/stress disorder is reopened. See 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression is remanded. In June 2016, the Veteran was afforded a VA PTSD examination. The examiner diagnosed depressive disorder with anxious distress. She found that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-V, and provided a negative nexus opinion for that reason. She did not provide a nexus opinion related to the Veteran’s diagnosed depressive disorder, likely because his claim to reopen was on appeal. As his claim has been reopened, the issue of entitlement to service connection for an acquired psychiatric disorder must be remanded for an additional examination. VA treatment records include a November 2013 mental health note where the Veteran reported he had received VA substance abuse treatment on six occasions. Another treatment note included that he initially had treatment in the 1980s. These early treatment records are not contained in the claims file; as substance abuse treatment records generally also contain some information related to mental health, these records should be obtained on remand. Also during the November 2013 mental health treatment, the Veteran reported that he was on Social Security Disability (SSDI) for anxiety and depression, as well as for other physical medical conditions. His SSDI records are not currently contained in the record, and should be obtained on remand. Lastly, during mental health treatment in November 2009, the Veteran reported that he was given a General Under Honorable Conditions discharge from service due to marijuana use and “fighting.” The Veteran’s DD 214 of record is barely legible, but does appear to note a bar to future enlistment. As behavior in service may be relevant to a psychiatric disorder claim, his personnel records should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records. All records/responses received must be associated with the electronic claims file. 2. Obtain the Veteran’s SSDI records, including any medical records used to determine entitlement to SSDI. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s VA treatment records for the period from January 1982 to November 2002. The Veteran has reported he received rehabilitation treatment from VA on six occasions in the 1980s and 1990s. 4. After the above records have been obtained, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. If the Veteran is diagnosed with PTSD, then the examiner must explain how the diagnostic criteria are met and opine: a) whether it is at least as likely as not (50/50 probability or greater) related to a verified in-service stressor? (The Veteran’s reported stressors of witnessing two sailors being injured on the flight deck of the aircraft carrier have been conceded.) Regarding the Veteran’s diagnosed depressive disorder, and any other acquired psychiatric disorders, the examiner must opine: b) whether each diagnosed disorder is at least as likely as not (50/50 probability or greater) related to an in-service injury, event, or disease, to include his witnessing of a sailor dragged across the flight deck (and survive) and of a sailor burned badly by a jet engine blast (with status of that sailor unknown)? c) whether each diagnosed disorder is at least as likely as not (50/50 probability or greater) began during active service? The examiner should address any behavioral or mental health concerns that are raised by the service personnel records. The examiner should additionally elicit information from the Veteran regarding his being stabbed in the stomach in 1997 (provided as medical history in a September 2006 primary care VA treatment note). A full explanation must accompany all expressed opinions. (Continued on the next page)   5. After completing the development requested above, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel