Citation Nr: 18157566 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-58 571A DATE: December 13, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia is remanded. FINDINGS OF FACT 1. A January 1976 rating decision denied service connection for a psychiatric disorder. Notice of that decision was provided to the Veteran that same month. The Veteran did not appeal the January 1976 rating decision or submit new and material evidence within the one-year appeal period. 2. Rating decisions dated in May 1988 and February 1989 reopened the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder but denied the claim on the merits. Notice of those rating decisions was provided to the Veteran in May 1988 and February 1989, and he did not appeal the May 1988 or February 1989 rating decisions or submit new and material evidence within the one-year appeal period. 3. Evidence received since the February 1989 rating decision is new and material and sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 1976, May 1988, and February 1989 rating decisions are final with respect to the Veteran’s claims to establish service connection for an acquired psychiatric disorder. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence received since the February 1989 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to December 1971. Since the RO last considered the Veteran’s claim, the Veteran has submitted additional pertinent evidence with a waiver of RO review of that evidence. 38 C.F.R. § 20.1304. With respect to the Veteran’s claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder, the Board is taking action favorable to the Veteran by reopening that claim. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia The Veteran contends that he has submitted new and material evidence sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied entitlement to service connection for a nervous disorder in a January 1976 rating decision, and notified the Veteran of the decision that same month. The Veteran did not appeal the January 1976 rating decision, and no evidence was received within the one-year appeal period that would constitute new and material evidence. Thus, the January 1976 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In May 1988 and February 1989 rating decisions, the RO reopened the Veteran’s claim, but denied entitlement to service connection for a nervous condition on the merits. Notice of those decisions were sent to the Veteran in May 1988 and February 1989, respectively. The Veteran did not appeal either the May 1988 or the February 1989 rating decisions, and no evidence was received within the one-year appeal period of either decision which would constitute new and material evidence. Thus, the May 1988 and February 1989 rating decisions are final. 38 U.S.C. § 7105 38 C.F.R. §§ 3.104, 20.302, 20.1103. The February 1989 rating decision denied service connection for a nervous condition on the basis that the Veteran’s nervous disorder was not incurred during service and was not manifested within one year of service discharge. Thus, in order for the Veteran’s claim to be reopened, evidence must be added to the record since the February 1989 rating decision addressing this basis. In the June 2015 rating decision, the RO determined that new and material evidence was presented to reopen the Veteran’s claim. The Board does not have jurisdiction to consider a claim which was previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. Pertinent evidence received since the February 1989 last final denial of his claim consists of private treatment records, the Veteran’s lay statements, and VA treatment records. In particular, the Veteran submitted a July 2017 DBQ and a September 2017 medical opinion completed by H. Henderson-Galligan, PhD which links the Veteran’s diagnosed schizophrenia to his active duty service. The medical opinion states that the Veteran’s psychiatric disorder began during military service. This evidence is new, as it was not of record at the time of the February 1989 last final denial. It is material, as it suggests that the Veteran’s psychiatric disorder is linked to his active duty service and may have been present during military service, which was the basis for the February 1989 denial of his claim. Accordingly, the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss, entitlement to service connection for tinnitus, entitlement to service connection for a sleep disorder, entitlement to service connection for hypertension, and entitlement to service connection for an acquired psychiatric disorder are remanded. Initially, the Board observes that an “SSA Inquiry” record in the Veteran’s claims file reflects that the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA), as the record states the dates of payment and that the “Disability Onset Date” is November 13, 1986. No SSA records have been associated with the claims file. The SSA records may contain evidence relevant to the Veteran’s claims. VA has a duty to obtain potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, the RO must obtain all available SSA records. With regard to the Veteran’s claims for entitlement to service connection for bilateral hearing loss, entitlement to service connection for tinnitus, and entitlement to service connection for an acquired psychiatric disorder, the Veteran should be provided with VA examinations to determine the existence and etiology of any bilateral hearing loss, tinnitus, and psychiatric disorder found. In that regard, the Board observes that the Veteran was scheduled for VA auditory and psychiatric examinations in May 2015, but that he failed to appear for those examinations. However, in his July 2015 notice of disagreement and in his December 2016 substantive appeal, the Veteran requested that the VA examinations be rescheduled and stated that he would attend the examinations. Although the Veteran’s statements do not provide good cause for his failure to appear for the previously scheduled examinations, the Veteran should be provided with another opportunity to attend the examinations as they may contain evidence required to establish his claims and because he has indicated that he will attend any scheduled examinations. The matters are REMANDED for the following action: 1. The RO must contact the SSA and request a copy of the Veteran’s complete SSA disability benefits file, including any administrative decision(s) on the Veteran’s application for SSA disability benefits and all of the associated medical records relating to his award of SSA disability benefits. A copy of any response(s) from SSA, to include (if applicable) a negative reply, must be included in the claims file. All records provided by SSA also must be included in the claims file. 2. The RO must contact the SSA and request a copy of the Veteran’s complete SSA disability benefits file, including any administrative decision(s) on the Veteran’s application for SSA disability benefits and all of the associated medical records relating to his award of SSA disability benefits. A copy of any response(s) from SSA, to include (if applicable) a negative reply, must be included in the claims file. All records provided by SSA also must be included in the claims file. 3. Provide the Veteran with a VA audiological examination to determine the existence and etiology of his claimed bilateral hearing loss and tinnitus. The Veteran’s claims file must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. After review of the service and post-service medical evidence of record, and the Veteran’s lay statements, the examiner must provide an opinion as to whether the Veteran’s bilateral hearing loss and tinnitus are at least as likely as not (i.e. 50 percent probability or more) etiologically related to his period of active military service, to include his military noise exposure. For the purposes of this examination only, the VA examiner should consider the Veteran’s lay statements to be credible evidence of in-service and post-service symptoms, as well as in-service noise exposure. In rendering the requested opinion and rationale, the examiner must note that the fact that the service treatment records do not document hearing loss is not fatal to the Veteran’s claim and cannot be the only basis by which to reject a possible nexus to service. The opinion must be supported by complete rationale. 4. Provide the Veteran with a VA psychiatric examination to determine the nature and etiology of all psychiatric disorders demonstrated proximate to or during the appeal period, including PTSD, schizophrenia, and all others. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be completed. Following review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: a. Identify all psychiatric disabilities demonstrated of record since service, even if resolved, as well as all psychiatric disabilities demonstrated on current clinical examination. b. For each psychiatric diagnosis identified, and to specifically include schizophrenia, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that the disability first manifested in service or is otherwise causally or etiologically related to any event in military service. A complete rationale must be provided for all opinions reached. 5. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel