Citation Nr: 18153684 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-44 092 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened. To this extent, the appeal is allowed. New and material evidence having been received, the claim of service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is reopened. To this extent, the appeal is allowed. Service connection for an acquired psychiatric disorder, including PTSD is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was last denied by the Regional Office (RO) in a December 2010 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the December 2010 decision denying service connection for bilateral hearing loss, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. Service connection for PTSD was denied by the RO in a July 2013 rating action. The Veteran initiated an appeal of that decision by filing an August 2013 notice of disagreement; however, he did not perfect his appeal with a timely VA Form 9, substantive appeal, after he was issued a statement of the case in April 2015. 4. Since the July 2013 decision denying service connection for PTSD, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 5. The Veteran is not shown to have had a verified in-service stressor upon which a diagnosis of PTSD may be confirmed. 6. Any acquired psychiatric disorder is not shown to be related to service. CONCLUSIONS OF LAW 1. The additional evidence submitted subsequent to the final December 2010 rating decision, which declined to reopen the claim of service connection for bilateral hearing loss, is new and material; thus, the claim for service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The additional evidence submitted subsequent to the final July 2013 rating decision, which denied service connection for PTSD, is new and material; thus, the claim for service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder, including PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303(a), 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from May 1988 to May 1990. Regarding the claims to reopen on appeal, the question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’d 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end. Id. The Board has characterized the Veteran’s claims of service connection for bilateral hearing loss and an acquired psychiatric disorder accordingly. Also as an initial matter, the Board notes that, while the Veteran is claiming service connection for PTSD, a claim of service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran’s claim pursuant to Clemons. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. Service connection for right ear hearing loss was initially denied by the RO in a September 1998 rating decision. The Veteran did not appeal this determination. Service connection for bilateral hearing loss was denied in July 2008 and, most recently in an unappealed December 2010 rating decision. The Veteran also did not submit new and material evidence within one year of the December 2010 rating decision. The last decision denial on any basis is to be finalized. Evans v. Brown 9 Vet. App. 273 (1996). In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). Evidence of record at the time of the September 1998 rating decision included the Veteran’s service treatment records (STRs), which showed that audiometric testing conducted at the time of entry into active duty showed he had a hearing loss at that time. The rating decision denied service connection on the basis that there was no worsening of the preexisting hearing loss. The July 2008 rating decision was based on additional VA treatment records that included the results of a June 2008 VA contract audiometric evaluation. These records showed the Veteran did not meet VA’s criteria for hearing loss in the left ear. Additional VA treatment records were received prior to the December 2010 rating decision that found that no new and material evidence had been received to reopen the previously denied claims. Evidence received subsequent to the December 2010 rating decision includes the results of a June 2016 VA examination. At that time, the diagnoses were mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. Regarding the right ear, the examiner stated that hearing loss was shown on entry into active duty and, thus, pre-existed service. While it was initially opined that the pre-existing hearing loss did not increase in severity beyond natural progression in service, the examiner, an audiologist, went on to state that an additional examination was warranted to determine if a “middle ear issue was present or made worse by military service.” This recommendation is found to be sufficient to reopen the Veteran’s previously denied claim regarding right ear hearing loss. Regarding the Veteran’s left ear hearing loss, as noted above, the Veteran was previously found to not meet the VA criteria for hearing loss. On June 2016 examination, a sensorineural hearing loss in the left ear was diagnosed. Thus, the basis for the prior denial has changed and the claim is found to be reopened. New and material evidence having been found, to this extent the appeal is allowed. 2. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disability, including PTSD. Service connection for PTSD was previously denied by the RO in a July 2013 rating decision based essentially on findings that the Veteran’s in-service stressors could not be verified and because he did not have a current diagnosis of PTSD. The Veteran initiated an appeal of that decision by filing an August 2013 notice of disagreement; however, he did not perfect his appeal with a timely VA Form 9, substantive appeal, after he was issued a statement of the case in April 2015. Therefore, the July 2013 rating decision is final. Evidence received subsequent to the July 2013 rating decision includes VA outpatient treatment records that include references in which the Veteran reported having PTSD and an April 2015 report that included an assessment of PTSD for which the Veteran was given medication. As the Veteran now has a psychiatric diagnosis where he previously did not, the basis for the prior denial has changed and the claim is found to be reopened. New and material evidence having been found, to this extent the appeal is allowed. Service Connection 3. Entitlement to service connection for an acquired psychiatric disorder, including PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims service connection for an acquired psychiatric disorder, to include PTSD, asserting that it is the result of a stressful incident in which he was involved while on active duty. In correspondence, he recounts his involvement in activities related to a helicopter accident in early 1989 in which a large number of fellow servicemen were killed. He states that his duties included body recovery and guarding of the deceased. For entitlement to service connection for PTSD, it is noted that this requires precise findings. These findings are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the DSM-5. Id.; see 38 C.F.R. §§ 4.125 (a), 4.130. With respect to the third element of service connection for PTSD, if the evidence shows that a veteran engaged in combat and the veteran is claiming a combat-related stressor, no credible supporting evidence is required. 38 C.F.R. § 3.304(f); see Doran v. Brown, 6 Vet. App. 283 (1994). As an initial matter, the Board finds that the Veteran did not engage in combat with the enemy during service. As noted, his claimed stressor involves a helicopter crash in early 1989. Therefore, his lay statements alone are not sufficient to establish the occurrence of a recognizable stressor upon which the diagnosis of PTSD may be based. West v. Brown, 7 Vet. App. 70 (1994). Review of the Veteran’s STRs shows no complaint or manifestation of an acquired psychiatric disorder during service. On examination for separation from active duty, he had no reports of a psychiatric nature and psychiatric clinical evaluation was normal. Post-service medical records include reports of VA outpatient treatment in February 2005 when an assessment for PTSD was negative. Later records include references in which the Veteran reported he had PTSD. In April 2015, assessments included PTSD for which the Veteran was given medication. Treatment records do not reflect any other acquired psychiatric disability. The record includes two determinations regarding the evaluation of the Veteran’s claimed in-service stressor event. In June 2013, it was formally found that there was a lack of information required to corroborate stressors associated with the Veteran’s claim for service connection for PTSD. Essentially, it was found that there was a lack of necessary information necessary to verify his claimed stressor and that copies of the Veteran’s personnel records were silent for a stressor. In an administrative decision, dated in January 2016, it was indicated that the Veteran’s military personnel records had been reviewed and found to be negative for the claimed PTSD stressor. The helicopter crash that was reported by the Veteran as being a stressor was confirmed as having occurred in South Korea in 1989. However, it was also noted that the Veteran had been stationed at Okinawa, Japan, which was the home station of the helicopter that crashed, and that there was no information about his participation in activities surrounding the circumstances involved in the helicopter crash and he was not shown to have gone to South Korea during service. A response from the Marine Corp on unit breakdown during the operation in 1989 showed that the helicopter crash occurred southeast of Tokyo and the helicopter was attached to the 3rd MAW. The Veteran was not attached to this unit and his job as a “Bulk Fuel Specialist” did not support the claim that he would have been called upon to recover and guard bodies. The administrative decision determined there was not adequate evidence to support the Veteran’s claimed stressor and it did not meet the criteria for establishing a stressor under 38 C.F.R. § 3.304(f). The Veteran has not submitted any other evidence to support his participation in the helicopter crash, as claimed. As such, his in-service stressor is not confirmed. The Veteran does not have a confirmed non-combat stressor on which a diagnosis may be based. As such, the Board does not find that a diagnosis of PTSD that is related to service is possible based upon the Veteran’s reported stressor. It is significant that, while there is an assessment of PTSD in the Veteran’s VA treatment records, there is no credible supporting evidence that the claimed in-service stressor occurred. Under these circumstances, the claim for service connection must be denied. REASONS FOR REMAND 4. Entitlement to service connection for bilateral hearing loss is remanded. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hearing loss because no VA examiner has opined whether any middle ear disability in the right ear was aggravated by service and there is no opinion regarding whether the sensorineural hearing loss now demonstrated in the left ear is the result of acoustic trauma during service. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate physician to determine the nature and etiology of his bilateral hearing loss. The examiner must address the questions set forth by the June 2016 VA audiologic evaluation. The examiner should also opine whether any left ear hearing loss is at least as likely as not related to an in-service injury, event, or disease, including acoustic trauma during service. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio