Citation Nr: 18149865 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-43 184 DATE: November 13, 2018 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. At its worst, the Veteran’s hearing loss was level I hearing acuity in the right ear and was level I hearing acuity in the left ear. 2. A June 2006 rating decision denied service connection for PTSD. The Veteran did not appeal, and did not submit new and material evidence within one year. 3. The evidence associated with the file after the June 2006 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, Diagnostic Code 6100 (2017). 2. The June 2006 rating decision denying service connection PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The evidence received after the June 2006 rating decision is new and material as to the claim for service connection for PTSD and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 through July 1996. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA). The Veteran asserts that he is entitled to service connection for PTSD, which should be construed broadly to include other psychiatric disorders. See August 2018 appellant brief. May 2004 and April 2006 rating decisions denied service connection for anxiety and depression. A June 2006 rating decision denied service connection for PTSD. In 2014, the Veteran filed a claim to reopen claims for service connection for anxiety, depression, and PTSD. These issues were all denied in an April 2015 rating decision. The Veteran filed a notice of disagreement regarding only the issues of PTSD and hearing loss. Likewise, the statement of the case only considered the issues that the Veteran appealed - hearing loss and PTSD. Accordingly, the Board declines to construe the Veteran’s claim of entitlement to service connection for PTSD broadly as there are prior final rating decisions, and the Veteran did not appeal the most recent denial of the claims. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008) (noting that where there is a prior, final decision on an issue, claims based upon distinctly diagnosed diseases and injuries are separate and distinct claims under 38 U.S.C. § 7104(b)); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (only where the claim is still in the initial adjudicatory phase, and there is no prior final decision regarding the claim currently at issue, do the Veteran’s statements not limit the scope of the claim). 1. Entitlement to a compensable disability rating for hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a non-initial increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Evaluations of bilateral hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Codes 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VIA will be used when the examiner certifies that the use of speech discrimination testing is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. §§ 4.85(c), 4.86. On VA audiological evaluation in January 2015, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 65 75 LEFT 20 35 50 55 The puretone threshold average was 51 in the right ear and 40 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. Using Table VI, these audiometric findings equate to level I hearing in both right and left ears. When those values are applied to Table VII, the result is a noncompensable evaluation. On VA audiological evaluation in February 2016, puretone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 30 65 65 LEFT 25 25 45 45 The puretone threshold average was 48 in the right ear and 35 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Using Table VI, these audiometric findings equate to level I hearing in both right and left ears. When those values are applied to Table VII, the result is a noncompensable evaluation. The evidence does not otherwise show the Veteran’s bilateral hearing loss warrants a compensable rating. Although the Veteran’s representative argued that the February 2016 VA examination is too old to adequately evaluate the state of the Veteran’s condition, there is no indication that the Veteran has asserted a worsening of his hearing loss since that time. See August 2018 appellant brief. To the contrary, during the Veteran’s February 2016 VA examination, he reported no functional impacts due to his hearing loss. In addition, the Veteran’s representative asserts that audiological examinations of record do not adequately portray the severity of his conditions due to its having been conducted in the sterile quiet of an audiology booth and does not reflect the severity of his condition in aspects of normal, daily life. See August 2018 appellant brief. However, VA’s policy of conducting audiometric testing in a sound-controlled room has been upheld, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Moreover, VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, the Veteran’s difficulty hearing or understanding speech or other sounds in various contexts was sufficiently measured during the Veteran’s VA audiology examinations. Doucette v. Shulkin, 28 Vet. App. 366 (2017) Accordingly, after a review of the evidence the Board finds that a preponderance of the evidence is against a finding that service-connected hearing loss warrants a compensable rating during the period on appeal. As the preponderance of the evidence is against the claim, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.85, Diagnostic Code 6100; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a June 2006 rating decision, the RO denied service connection because the evidence did not show a confirmed diagnosis of PTSD related to a verified in-service trauma. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2006 decision includes the Veteran’s service treatment records (STRs), an October 1996 VA examination, VA treatment records through April 2006, private medical records through 2005, and the Veteran’s statements. Those records do not indicate that the Veteran was diagnosed with PTSD. The Veteran’s STRs include an entrance and separation examination, which do not indicate a diagnosis for PTSD. See May 1976 entrance examination and March 1996 separation examination. The October 1996 VA examiner reported that the Veteran’s psychological condition was alert and oriented, pleasant and cooperative, with appropriate responses, and did not diagnose the Veteran with PTSD. See October 1996 VA examination. VA treatment records show medication management for anxiety and depression. See September 2003 VA treatment record. Private medical records show treatment for back, knee, and adrenal disorders. The Veteran’s statements relay various stressors that occurred while in service. See December 2005 statement in support of claim. Evidence submitted after the June 2006 decision includes the following: 1) VA treatment records; 2) a January 2015 VA examination and report; 3) a June 2015 statement from a private treating professional; and 4) private treatment records. The June 2015 statement from private treating professional, SA, a registered nurse, notes the Veteran was her patient, and that he was currently being treated for PTSD from serving in three wars in the Army for twenty years. The Board finds that new and material evidence has been presented. The evidence, including the June 2015 statement from SA, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence that the Veteran is diagnosed with PTSD related to service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim of entitlement to service connection for PTSD is reopened. REASONS FOR REMAND Entitlement to service connection for PTSD. Remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The June 2015 statement from a private medical provider indicates that she treated the Veteran for PTSD in December 2014 and April 2015. In addition, VA treatment records indicate that the Veteran was previously prescribed psychiatric medication from a private physician. See January 2015 VA examination (noting the Veteran started psychiatric medication from a private physician); September 2003 VA treatment record (noting the Veteran started psychiatric medication from a private physician). More recent VA treatment records indicate the Veteran is treated by outside providers, Doctors J, S, and W. See September 2015 VA treatment records. These treatment notes are not currently of record and the record does not indicate any attempts to obtain the records. Accordingly, remand is required to attempt to obtain private medical records. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file, to include from the Doctors J, S, and W, as well as SA, and any private treatment provider prior to September 2003. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records have been associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and etiology of PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must express an opinion as to whether the Veteran meets the criteria for PTSD. If the examiner finds that the Veteran does not meet the criteria, then the examiner must address the 2015 letter from the private treatment provider that diagnosed PTSD. If the examiner finds that the Veteran meets such criteria, the examiner must provide an opinion whether PTSD can be related to a stressor or stressors 1) established as having occurred during active service or 2) claimed by the Veteran that are adequate to support a diagnosis of PTSD based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. The examiner must specifically address the Veteran’s assertions of in-service events, to include a knee injury and seeing soldiers burned to death or killed by explosions. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel