Citation Nr: 18151616 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-44 474 DATE: November 19, 2018 ORDER The previously denied claim of entitlement to service connection for right ear hearing loss is reopened. The claim to reopen the previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. The claim of entitlement to service connection for right ear hearing loss is denied. The claim of entitlement to service connection for hypertension is denied. The claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD is denied. FINDINGS OF FACT 1. A claim of entitlement to service connection for right ear hearing loss was initially denied in an October 2008 rating decision, on the basis that the Veteran did not have a right ear disability. 2. Evidence received since the October 2008 rating decision speaks to the reasons for the previous final denial and warrants reopening the Veteran’s claim for service connection for right ear hearing loss. 3. A claim of entitlement to service connection for post-traumatic stress disorder (PTSD) was initially denied in a May 2011 rating decision, on the basis that the Veteran did not have any current diagnosis of posttraumatic stress disorder. 4. The Veteran does not have a current psychiatric disorder, to include PTSD. 5. The Veteran’s right ear hearing loss did not manifest during active service, within one year thereafter, and is not otherwise related to his active service. 6. The Veteran’s hypertension did not manifest during active service, within one year thereafter, and is not otherwise related to his active service, to include his presumed exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim of entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385. 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with active duty service in the United States Air Force from August 1963 through July 1967, including service in the Republic of Vietnam. The Veteran’s claim of entitlement to service connection for right ear hearing loss was initially denied in an October 2008 rating decision; his claim of entitlement to service connection for post-traumatic stress disorder (PTSD) was initially denied in a May 2011 rating decision; the Veteran sought reopening of both by claim filed in February 2014. The other claims at issue were timely appealed from rating decision(s) and the statement of the case (SOC). Claims to Reopen A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered “new” if it was not previously submitted to agency decision makers; “material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. 1. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for right ear hearing loss. The Veteran’s claim of entitlement to service connection for right ear hearing loss was initially denied in an October 2008 rating decision. The denial occurred, in part, as the Veteran’s right ear hearing loss was not considered a disability under 38 C.F.R. § 3.385. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence associated with the file includes a VA examination from April 2014, which diagnosed the Veteran with right ear sensorineural hearing loss as defined under 38 C.F.R. § 3.385. The new evidence is material, and is considered to have a reasonable possibility of substantiating the claim; as such, reopening of the claim is warranted. 38 C.F.R. § 3.156(a). 2. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD). The Veteran’s claim of entitlement to service connection for post-traumatic stress disorder (PTSD) was initially denied in a May 2011 rating decision. This claim was denied on the basis that the Veteran did not have any current diagnosis of posttraumatic stress disorder. This conclusion was based on a November 2010 conclusion of a VA examiner, who applied the DSM-IV criteria, and found that there was no clinically significant distress or impairment in social, occupational, or other important areas of functioning. The RO notified the Veteran of this decision and of his right to appeal, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). After the decision became final, VA regulations changed to require the use of the DSM-5 rather than the DSM-IV. The Veteran’s attorney has contended that, this change alone, warrants reopening the Veteran’s claim. The Veteran’s attorney cited no authority for this proposition, however. Further, whether evaluated under the DSM-IV or DSM-5, the essential fact remains true: the Veteran’s claim was denied for lack of a current PTSD diagnosis, and as explained below, there has been no evidence submitted of such a diagnosis under either criteria. New evidence associated with the file includes a January 2014 Correspondence entitled “Mental Health Symptoms,” with various symptoms listed. Some symptoms were checked and the document was signed by the Veteran. The symptoms checked were chronic sleep problems, difficulty making decisions, flashbacks, heavy use of alcohol, memory loss, nervousness, and unable to share feelings. This evidence, consisting solely of self-reported mental health symptomatology, does not raise a reasonable possibility of substantiating the claim, and alone, does not warrant reopening the claim. 38 C.F.R. § 3.156. There are a variety of medical and service records that were associated with the claim after the final decision, but there are not any relevant entries therein that were not already associated with the file at the time of the prior denial. The diagnosis of PTSD by a social worker from 2010 was considered and in the record at the time of the prior denial. The Veteran and his counsel also associated documents that recount his previously stated stressor from 1966. As this is a mere recitation of previously provided evidence that is documented at various points in the record prior to the denial, including during the November 2010 VA examination, it is redundant. New and material evidence that has a reasonable possibility of substantiating the claim has not been associated with the record, and reopening of the final decision on this claim on that basis is not warranted and is hereby denied. 38 C.F.R. § 3.156(a). The Veteran’s counsel contends that various errors were made in the assistance provided to the Veteran leading up to the previous final decision, and argues that errors were made by the VA examiner and by the AOJ. While a final rating decision may be revised based on clear and unmistakable error (“CUE”), as provided in 38 C.F.R. § 3.105, such a contention must be specifically pled. Such arguments with a now final rating decision do not affect the underlying question of whether new and material evidence has been submitted. Absent a formal claim for revision of a prior decision that is properly appealed, the Board must look only at the claim before it now. In doing so, for the reasons stated above, the Board finds that new and material evidence has not been submitted, and the Veteran’s claim is not reopened. Claims for Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (including hypertension, psychoses, and sensorineural hearing loss) may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that “shown as such in service” means “clearly diagnosed beyond legitimate question”). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. The law provides a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who, during active military, naval, or air service, served in Vietnam or in or near the Korean DMZ between April 1, 1968 and August 31, 1971, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). There is no presumed relationship under the law between herbicide exposure and hypertension. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 3. The claim of entitlement to service connection for right ear hearing loss is denied. The Veteran seeks service connection for his right ear hearing loss. His claim for service connection for left ear hearing loss was previously granted. This claim for the right ear, as noted above, has been reopened. At the time of a September 2008 VA examination, the Veteran had normal hearing in his right ear. The April 2014 VA examination established that the Veteran has a current disability as defined under 38 C.F.R. § 3.385. On the VA examination, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 30 30 Right ear speech discrimination scores were noted to be 92 percent. The VA examiner noted a diagnosis of sensorineural hearing loss in the frequency range of 500-4000 Hz. The VA examiner noted that the Veteran was a jet mechanic/crew chief in the Air Force from 1963 through 1967, that he had jet engine noise exposure and occasional bombings on base. The Veteran’s history was noted to be negative for post-military occupational or recreational noise exposure, but the Veteran was noted to have hypertension and otitis in early childhood. The VA examiner opined that after having reviewed the induction and separation examinations in the service treatment records, there was no permanent positive threshold shift (worse than reference threshold)) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for the right ear. The VA examiner opined that the Veteran’s current right ear hearing loss was not at less as likely as not caused by ora a result of an event in military service, as the Veteran had normal thresholds upon separation from the military and there were no threshold shifts. The VA examiner indicated there was no evidence to support the Veteran’s claim of military noise-induced hearing loss in the right ear. Before discussing the service audiograms, it is noted that prior to November 1967, service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. To convert, 15 dB is added at 500 Hz, 10 dB at 1000, 2000, and 3000 Hz, and 5 dB at 4000 Hz. Further, VA will consider audiometric data dated between January 1, 1967 and December 31, 1970 using either ISO-ANSI or ASA units, whichever is more favorable to the claimant, unless the audiogram clearly indicates which standard was used. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the tables below show the ASA measurements recorded in-service with the comparable ISO (ANSI) measurements in adjacent parentheses. On the 1963 induction examination, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) -5 (5) 0 (10) 0 (5) On the Veteran’s report of medical history, on separation, he reported no problems with his ears. On the June 1967 separation examination, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) 10 (20) 5 (10) A March 1967 service treatment record entitled “Hearing Conservation Data” noted that the Veteran reported wearing hearing protection in his title, and noted audiometric data as well. On this document, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 5 (15) 0 (10) 5 (10) The evidence of record indicates that the right ear hearing loss disability (as defined by 38 C.F.R. § 3.385) first manifested between 2008 and 2014, many decades after service. It is accordingly concluded that this condition was neither chronic nor incurred in active service. The evidence does not show a medical nexus between the current disability and his service. The VA examiner’s opinion is the sole competent medical opinion of record, and is against the claim. There are no specific pleadings raised on appeal with regards to the denial of this claim, except a request for consistency between the determinations on the left ear and right ear claim being related to in-service noise exposure. See September 2014 Notice of Disagreement. Review of the rationale does not show any deficiencies in the VA examiner’s opinion—the VA examiner articulated a basis for the differing conclusions; namely, the threshold shift shown in service as to one ear and not the other. Counsel does not specify why this rationale is inadequate, and it does not offend reason to conclude that one ear could suffer trauma while the other did not. The remainder of counsel’s contentions do not have any specificity to the facts of this case, and a specific response thereto is not required. After careful review of the decision below, it appears that service connection for right ear hearing loss was appropriately denied because there is no link (medical nexus) between the claimed condition and the Veteran’s active service. 38 C.F.R. § 3.303. The evidence preponderates against the claim, and the benefit-of-doubt rule is inapplicable. 38 C.F.R. § 3.102. 4. The claim of entitlement to service connection for hypertension is denied. The Veteran seeks service connection for hypertension. VA medical records indicate that the Veteran was diagnosed with hypertension in July 2008. For the purposes of this analysis, the Veteran is considered to have met the required element of a current disability. Review of the service treatment records indicates the Veteran’s blood pressure on induction in 1963 was 118/76; and at separation in 1967 was 130/68. There are no complaints or diagnoses of, or treatments for, hypertension in the service treatment records. The Veteran’s DD-214 and various pleadings place him in Vietnam during the applicable time-period, and he is presumed to have been exposed to herbicide agents under the law. See 38 C.F.R. § 3.307. However, hypertension is not a condition presumptively linked to herbicide agent exposure. Regardless, service connection could still be granted if the evidence otherwise showed the condition were related to his active service However, there is no medical opinion of record associating the Veteran’s hypertension to any event of his active service. The only evidence to support any link to service is the contention raised by the Veteran. A contention from a layman that a condition is related to presumptive herbicide exposure is not competent, and does not establish such as fact. See Jandreau v. Nicholson, 492 F.3d at 1374. As it stands, the claim that hypertension is related to herbicide exposure must be denied for lack of any medical nexus. Prior to reaching this conclusion, the question of whether the VA had fulfilled its duty to assist the Veteran was considered. Specifically, the Veteran was not afforded any VA examination of this condition. However, the Veteran’s lay assertion alone does not trigger the duty to provide a VA examination under 38 U.S.C. § 5103A, as it does not meet the minimum competency required for a finding that the condition “may be associated” with the Veteran’s herbicide exposure. Additionally, as PTSD is not entitled to service connection, secondary service connection to this condition is not possible. As such, and further examination of any potential relationship between these two conditions or further discussion of the articles referenced by the Veteran’s counsel (see September 2014 Notice of Disagreement) is not required. Other theories of service consideration were considered. The absence of associated symptomatology or diagnoses of the condition for more than 40 years following the Veteran’s separation from active duty weighs heavily against the claim. After careful consideration, it is determined that the Veteran’s hypertension was neither incurred in-service nor within a year thereof, and thus does not qualify for service connection as a chronic disability. Otherwise, there is no evidence of any relationship between the Veteran’s hypertension and his active service, to include the presumed exposure to herbicide agents. As the evidence weighs against the claim, service connection is not warranted, and the benefit of the doubt rule is inapplicable. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. In the Veteran’s February 2014 claim, the Veteran sought service connection for an acquired psychiatric condition other than PTSD. He contended that he was treated for a psychiatric condition in approximately November 2010. Review of the Veteran’s service treatment records and medical records do not show any treatment for, or diagnosis of, any mental condition. The medical records associated with the record were reviewed, but these do not suggest that the Veteran could have any current mental condition other than PTSD. There is no diagnosis of any psychiatric condition (excluding a remote diagnosis of PTSD from 2010) of record. The VA does not have the duty to provide a medical examination if there is no evidence of a current disability. 38 U.S.C. § 5103A(d). The Veteran is not currently in mental health treatment, there are no notations of any mental health disabilities in the record from 2014. Moreover, the Veteran is not competent to diagnose a mental disability: his report of symptoms such as chronic sleep problems, difficulty making decisions, flashbacks, heavy use of alcohol, memory loss, nervousness, and an inability to share feelings is insufficient evidence of a mental disorder. The VA did not err by failing to examine the Veteran for mental disabilities after his 2014 claim was filed. Service connection for an acquired psychiatric condition, other than PTSD, is denied as the preponderance of the evidence establishes there is no current psychiatric disability. 38 C.F.R. § 3.303. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel