Citation Nr: 18151387 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 18-22 904 DATE: November 20, 2018 ORDER Reopening of a previously denied claim of for service connection for tinnitus is granted. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. REMAND Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In an unappealed March 2015 rating decision, service connection for tinnitus was denied on the grounds of a lack of a nexus to service. 2. Evidence associated with the claims file since the March 2015 rating decision is new, and raises a reasonable possibility of substantiating the underlying claim. 3. PTSD is manifested by occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. CONCLUSIONS OF LAW 1. The March 2015 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria for reopening a previously denied claim of service connection for tinnitus have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Marine Corps from July 2001 to October 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record here does not warrant inference of a claim for TDIU. New and Material Evidence Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). A claim for service connection for tinnitus was denied in March 2015 rating decisions on the grounds that no nexus to service was shown. The Veteran did not appeal this denial, and it became final. Since March 2015, the Veteran has submitted statements from himself and other Marines regarding the onset of tinnitus in service and details regarding the failure to report such. These statements and details were not previously considered and are material to the unestablished fact of a nexus. Reopening is appropriate. The Board stresses that determinations with regard to the submitted evidence are made solely for the purpose of reopening. The credibility of the evidence, but not its weight, must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Such findings are not binding on the de novo weighing of the merits of the claim to follow. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that a 30 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). VA treatment records show that the Veteran undergoes frequent counseling sessions at the Vet Center and uses medication for control of mental health symptoms. Friends and family report observing panic attacks, anxiety, and unpredictable behavior. The Veteran’s spouse commented on anxiety, nightmares, and sleeping irregularities. She reported that the Veteran displays a “roller-coaster” of emotions that included aggression within the family, flashbacks, isolation, and feelings of hopelessness. The Veteran conveyed that he suffers from sleep deprivation, panic attacks, and “self-medicates” with alcohol. At a May 2017 VA examination, the Veteran endorsed recurrent, intrusive memories of his stressors, avoidance behaviors, anhedonia, sleep disturbances, hypervigilance and hyperstartle reflex, depression, suspiciousness, mild memory loss, and occasional, fleeting suicidal ideation; the last time was three or four months prior. He took classes, but did not do well. The Veteran was well-groomed, and laughed and joked with the examiner. He wore dark glasses, so eye contact was hard to judge. Speech and thought processes were normal and organized. He was oriented, but had trouble repeating numbers backwards, suggesting concentration and working memory problems. The record reflects that the Veteran overall remains able to communicate and function well; his behavior at his examination was appropriate and friendly. he was responsive and well-oriented, and although he showed some problems with working memory did not demonstrate deficits of judgment or frequent panic attacks. In short, the disability picture presented most closely resembles that of the 30 percent evaluation. The Board notes the VA examiner opined that the evaluation was warranted as well. Therefore, the Board finds that the preponderance of evidence is against assigning a disability rating in excess of 30 percent for the Veteran’s PTSD, and there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Service connection for tinnitus is reopened; the RO did not do so, and so has not considered the issue on the merits. For the Board to proceed to do would prejudice the Veteran. Accordingly, the matter are REMANDED for the following action: 1. Schedule the Veteran for a VA audio examination. The claims folder must be reviewed in conjunction with the examination. The examiner is asked to opine as to whether currently diagnosed tinnitus is at least as likely as not related to military noise exposure as a bulk fuel specialist in service. A full and complete rationale is required for all opinions expressed. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel