Citation Nr: 18150191 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-22 255 DATE: November 14, 2018 ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for hearing loss (also claimed as right ear hearing loss). The appeal is denied. Entitlement to service connection for tinnitus (also claimed as right ear tinnitus) is denied. REMANDED Entitlement to service connection for major depressive disorder (claimed as anxiety and depression) is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for skin rashes is remanded. FINDINGS OF FACT 1. In a November 2011 rating decision, service connection for hearing loss was denied. The Veteran did not perfect an appeal from this denial, nor was new and material evidence received within one year. 2. Evidence received since the November 2011 rating decision is cumulative of evidence previously considered and fails to raise a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss. 3. The Veteran’s tinnitus is not etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The November 2011 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. Evidence received since the November 2011 rating decision is not new and material to the issue of entitlement to service connection for hearing loss (also claimed as right ear hearing loss) and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for tinnitus (also claimed as right ear tinnitus) have not been met. U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 through July 1969. On his substantive appeal, the Veteran indicated he wished to present testimony before a Veterans Law Judge. However, in an August 2016 statement, the Veteran withdrew his request for a hearing. As the hearing request has been withdrawn, the Board may proceed with appellate review. 38 C.F.R. § 20.204. The claims for entitlement to service connection for tinnitus and skin rashes were first denied in a February 2011 rating decision, and those denials were confirmed and continued in a November 2011 rating decision. Although the Veteran did not submit a notice of disagreement or otherwise perfect an appeal as to those rating decisions, he did submit new and material evidence in December 2011 indicating that he had been diagnosed with tinnitus and that his skin rashes, diagnosed as folliculitis, erupted following Agent Orange exposure in Vietnam. As the Veteran submitted new and material evidence within one year of the February 2011 rating decision regarding the claims of entitlement to service connection for tinnitus and skin rashes, that rating decision never became final, and the issues are recharacterized to reflect they will be considered on the merits. See 38 C.F.R. § 3.156(b). Additionally, in August 2009, the Veteran claimed entitlement to service connection for PTSD, anxiety, and depression. In the February 2011 rating decision, the Regional Office (RO) denied entitlement to service connection for PTSD and for depression (claimed as anxiety and depression) because there was no evidence his claimed psychiatric conditions were etiologically related to his active duty service. Although the November 2011 rating decision indicated that VA medical records from October 2010 through June 2011 were reviewed, the records contained in the claims file are strikingly incomplete. A complete copy of the Veteran’s VA treatment records indicating his multiple diagnoses of PTSD and major depressive disorder related to his active duty in Vietnam was not obtained until January 2013. The Veteran had consistently notified the RO that he sought treatment for his psychiatric conditions through the San Juan VA Medical Center. VA treatment records dated August 2009 through December 2012 indicate the Veteran sought ongoing treatment for diagnosed major depressive disorder and PTSD, reported experiencing nightmares related to Vietnam, and his treating physicians and social workers noted his stressor to be the Vietnam War. The Court of Appeals for Veterans Claims (Court) recently held in Turner v. Shulkin, 29 Vet. App. 207 (2018) that medical records are constructively received for purposes of 38 C.F.R. § 3.156(b) when VA had sufficient knowledge within the one-year appeal period following a RO decision that the records existed. As the Veteran notified the RO that he sought psychiatric treatment through VA in July 2010, July 2011, and December 2011, the records were constructively received by VA. Moreover, the treatment records continued to show the Veteran was diagnosed and treated for major depressive disorder and PTSD related to his combat experience in Vietnam; as such, they indicate the Veteran’s major depressive disorder and PTSD may be etiologically related to his active duty service, and are therefore new and material evidence. Thus, new and material evidence was constructively received (per Turner) within one year of the February 2011 rating decision, and it did not become final regarding the claims for entitlement to service connection for major depressive disorder and PTSD. The Veteran clearly stated on his notice of disagreement in 2013 that his claim should include PTSD, not just major depression. The claims have been characterized to reflect they will be considered on the merits. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss (also claimed as right ear hearing loss) Although the RO initially recognized that the Veteran’s claim for entitlement to service connection for hearing loss had previously been denied (see August 2012 VCAA notice letter and January 2013 rating decision), it apparently reopened the claim and decided it on the merits in the Statement of the Case and Supplemental Statement of the Case. Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384; see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Entitlement to service connection for hearing loss has been denied several times, beginning in February 2011. The last final rating decision for the hearing loss claim was in November 2011, which confirmed and continued the previous denial of service connection. The Board finds the November 2011 rating decision became final for the following reasons. First, the Veteran did not initiate an appeal within one year. On December 13, 2011, the RO received a statement that the Veteran was “seeking reevaluation of denied claim of 11/29/2011.” There is no provision for “reevaluation” of rating decisions, so the RO properly informed the Veteran that he needed to submit new and material evidence in order to reopen his claim. Second, although additional evidence was received within one year of the November 2011 decision, it was not new and material to this claim. Within that one-year period, the RO received a December 2011 statement that the Veteran had been diagnosed with hearing loss. However, this evidence was neither new nor material, as the RO had previously considered that the Veteran had hearing loss for VA purposes, but determined that his hearing loss was not etiologically related to his active duty service. None of the evidence received by the RO in the one year period following the November 2011 rating decision provided a nexus linking the Veteran’s hearing loss to his active duty service. Therefore, since none of evidence received within one year was new and material, the November 2011 rating decision became final.   The Veteran has submitted statements asserting that his hearing loss was caused by noise exposure during combat activities while in Vietnam. However, these statements were not new, as he previously reported noise exposure while in Vietnam during his September 2010 VA examination. The Veteran has also submitted statements indicating that he experienced acoustic trauma while on active duty service. See August 2016 Deferred Rating (noting that the Veteran claimed acoustic trauma exposure, and the previous decision only considered military service). Although, as will be discussed further below, the RO ordered a new VA examination in August 2016 to evaluate this claim, it is not new. The September 2010 VA examiner expressly noted that the Veteran experienced acoustic trauma following a heater explosion while on active duty service, but opined the Veteran’s current hearing loss was not etiologically related to his active duty service, to include the explosion, because the Veteran’s hearing was normal at separation and he was first seen for hearing complaints more than 40 years after separation from active duty. The Veteran was afforded a VA examination in August 2016 to determine the etiology of his hearing loss. The examiner again considered the Veteran’s reported in-service noise exposure and acoustic trauma, and opined it was less likely than not that the Veteran’s current hearing loss was etiologically related to in-service acoustic trauma or noise exposure. Accordingly, the August 2016 nexus opinion is not new or material because it fails to provide evidence relating to an unestablished fact, namely, a nexus linking the Veteran’s hearing loss to his active duty service. As new and material evidence has not been received, the claim for entitlement to service connection for hearing loss cannot be reopened at this time.   2. Entitlement to service connection for tinnitus (also claimed as right ear tinnitus) The Veteran claims entitlement to service connection for tinnitus. Specifically, he asserts his tinnitus was caused by exposure to heavy noises while on active duty. Service treatment records do not reflect the Veteran ever complained of or sought treatment for tinnitus. On his report of medical history for separation in June 1969, he marked “no” when asked if he had experienced any ear trouble. The Veteran was afforded a VA examination to evaluate his hearing loss in September 2010. At the time, the examiner noted that he did not report any tinnitus. Post-service VA treatment records reflect the Veteran reported no tinnitus to his physicians in July 2009, October 2009, December 2009, February 2010, June 2010, November 2010, February 2011, August 2011, January 2012, July 2012, and November 2012. A December 2012 VA treatment record reflects he reported experiencing tinnitus. In December 2011, the Veteran submitted a statement from a private audiologist noting the Veteran was first seen in September 2011 and was diagnosed with tinnitus. The Veteran was afforded a VA examination in August 2016 to evaluate the etiology of his tinnitus. He reported he had tinnitus in his right ear since 1968. The examiner opined it was at least as likely as not that his tinnitus was a symptom of his hearing loss. The examiner also opined it was less likely than not that the Veteran’s tinnitus was etiologically related to his military noise exposure, because he did not begin reporting tinnitus until more than 40 years after separation from active duty and he is not service connected for hearing loss. The examiner noted that the Veteran’s hearing loss was most likely related to combined etiologies of post-service occupational and recreational noise exposure or presbycusis effect due to progressive inner hair cell dysfunction rather than remote military acoustic trauma. The examiner went on to explain that although tinnitus may be associated with different etiologies, in the absence of hearing loss induced by military noise exposure, or documentation of tinnitus in the Veteran’s service treatment records, the etiology of any reported tinnitus so many years after service is less likely to be related to acoustic trauma during military service. The examiner noted that the Veteran’s non-service-connected bilateral sensorineural hearing loss was the most likely cause of his tinnitus complaints. There is no persuasive evidence the Veteran’s tinnitus is etiologically related to his active duty service. Although tinnitus is a type of disorder associated with symptoms capable of lay observation, the Board does not find the Veteran credible to report the onset of his symptoms. Although he claimed entitlement to service connection for tinnitus in July 2010, his VA treatment records are silent for any complaints of tinnitus until December 2012. In fact, from July 2009 through November 2012, his medical records indicate the Veteran denied experiencing tinnitus. The first indication that he was diagnosed with tinnitus is the December 2011 private audiologist’s statement that the Veteran had been first evaluated in September 2011 and was diagnosed with tinnitus. Notably, the Veteran first reported tinnitus to physicians, and was first diagnosed, over a year after his initial claim for entitlement to service connection for tinnitus following two rating decisions in February and November 2011 denying his claim on the basis that he had not been diagnosed with or treated for tinnitus. The Court has determined the Board may properly assign more probative value to lay statements in contemporaneous medical records than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Accordingly, the Board finds the Veteran’s contemporaneous medical records indicating that he denied experiencing any tinnitus until at least September 2011 more probative than his statements that he had experienced tinnitus since 1968 made in the course of filing a claim for benefits. The Board finds the August 2016 VA examination highly probative because the conclusion is supported by medical rationale and is consistent with the verifiable facts regarding the Veteran’s contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). After conducting a full hearing test and reviewing the Veteran’s service treatment records, the examiner opined that the Veteran’s tinnitus was not directly related to his active duty noise exposure, but was most likely related to his non-service-connected bilateral hearing loss, because he did not report experiencing tinnitus until more than 40 years following active duty service. There is no other evidence in the claims file that relates the Veteran’s tinnitus directly to his active duty service. As there is no evidence that his tinnitus is related to active duty service, and he is not service connected for bilateral hearing loss, entitlement to service connection is not warranted. The elements for service connection for tinnitus have not been met. Accordingly, service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 3. Entitlement to service connection for PTSD is remanded. The Veteran seeks entitlement to service connection for PTSD. A December 2009 VA treatment record indicates the Veteran reported seeking treatment at a VA facility in New York sometime in 1971, but the provider did not believe he was emotionally disturbed by combat experience, and the Veteran never sought follow-up treatment. It does not appear that the RO has attempted to obtain the 1971 VA treatment records. The claims file contains conflicting evidence regarding whether the Veteran’s PTSD and major depressive disorder are etiologically related to his active duty service. The Veteran was afforded a VA examination to evaluate his PTSD in February 2011. The examiner opined that the Veteran did not have a diagnosis of PTSD because his claimed stressor did not meet the criteria for a PTSD stressor. However, the Board does not find this opinion adequate because the examiner failed to consider any of the Veteran’s combat experience in Vietnam. The Veteran’s military personnel file reflects that he had Vietnam service and participated in the Tet Counter Offensive. The Veteran’s VA treatment records reflect he has a diagnosis of PTSD related to his combat experiences in Vietnam, but that diagnosis is made solely from the Veteran’s subjective reports of stressors and symptoms rather than a review of his claims file. More information is needed to allow the Board to make a fully-informed decision. It is unclear whether the Veteran has a current diagnosis of PTSD under the DSM-5. 4. Entitlement to service connection for major depressive disorder is remanded. The Veteran seeks entitlement to service connection for major depressive disorder. He was afforded VA examinations to determine the etiology of his major depressive disorder in February 2011 and August 2016. Both examiners opined it was less likely than not that his major depressive disorder was etiologically related to his active duty service because he was not treated for depression until 40 years following separation from active duty. Although both examiners noted the Veteran’s reported symptoms of depression, they relied solely on the amount of time between separation and when the Veteran first sought psychiatric treatment when rendering their opinions. As such, they are inadequate as they fail to consider the Veteran’s repeated, consistent reports that he experienced nightmares and symptoms of depression since returning from Vietnam. The Board finds that the February 2011 and August 2016 VA examinations contained inadequate medical opinions for the claim of service connection for major depressive disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA affords the Veteran an examination in a service connection claim, the examination must be adequate); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (noting that an adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion). Accordingly, a remand is necessary to obtain an adequate VA medical opinion for this claims. 5. Entitlement to service connection for skin rashes is remanded. The Veteran submitted a private opinion dated December 2011 which stated the Veteran was exposed to Agent Orange in Vietnam and was evaluated for an eruption of a skin condition over his buttock, thighs, and scalp. He was subsequently diagnosed with folliculitis. However, the statement from the private dermatologist does not explain how exposure to Agent Orange was linked to his currently diagnosed folliculitis, although it was suggested there was a connection. As there is evidence the Veteran has a current diagnosis of folliculitis that may be related to active duty service, to include exposure to Agent Orange, he should be afforded a VA examination. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2012 to the present. 2. Ask the Veteran to identify which New York VAMC he sought mental health treatment through in 1971 and obtain any identified records. Since these records would be paper records, searches should be made of any archived or retired records, with documentation of the results. 3. DO NOT PROCEED WITH THE FOLLOWING UNTIL ALL ABOVE RECORDS HAVE BEEN OBTAINED, OR IT IS DETERMINED THEY DO NOT EXIST. 4. Only after obtaining the above identified records, to the extent they exist, then schedule the Veteran for a VA examination to obtain an opinion as to his major depressive disorder and PTSD. The examiner is requested to provide the following information and opinions: • If the Veteran is diagnosed with PTSD, the examiner should opine whether it is at least as likely as not related to a verified in-service stressor, to include his service in Vietnam. • If the Veteran does not meet the criteria for diagnosing PTSD, the examiner must explain how the diagnostic criteria are not met and discuss any disagreement with the diagnoses of PTSD shown in the VA outpatient records. • If major depressive disorder or any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s service in Vietnam. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin rashes. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to Agent Orange while in Vietnam. The examiner is advised that simply   stating the diagnosed skin condition is not on the list of conditions presumptively linked to Agent Orange exposure is not a sufficient rationale for a negative opinion. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel