Citation Nr: 18157616 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 18-47 786 DATE: December 13, 2018 ORDER The application to reopen a claim of entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. FINDINGS OF FACT 1. An August 2008 rating decision denied the Veteran’s application to reopen a previously denied claim for service connection for low back pain; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 2. Evidence received since the August 2008 rating decision is new, not cumulative or redundant, relates to a previously unestablished fact necessary to substantiate a claim for service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service; no hearing loss was shown to a compensable degree within one year of separation from service. 4. There is a relatively equal balance of evidence for and against the onset of the Veteran’s tinnitus during active service. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied for service connection for low back pain is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). 2. New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met; service connection may not be presumed. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1961 to December 1963, and in the U.S. Navy from May 1964 to May 1968. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a December 2017 rating decision by the Regional Office (RO). Service Connection 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disability The Veteran requests reopening of a previously denied claim of entitlement to service connection for a low back disability. For the reasons explained below, the Board finds that new and material evidence has been received, and the claim is reopened. An August 1969 rating decision denied the Veteran’s original claim for service connection for a back condition due to the Veteran’s failure to report to a VA examination. See also Request for VA examination, August 1969. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the August 1969 rating decision, which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). In February 2007 and April 2008, the Veteran filed requests to reopen the claim. August 2007 and August 2008 rating decisions appear to have reopened the claim as for service connection for low back pain, but denied the claim on the merits, citing the fact that there was no evidence of treatment after the Veteran’s first period of active service until 2003. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the August 2007 or August 2008 rating decisions, both of which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). In January 2015, the Veteran filed another request to reopen the claim. A December 2017 rating decision denied reopening the claim, citing the fact that there was no evidence of a nexus to service. The Veteran appealed herein. The Board acknowledges that the February 2007 and April 2008 rating decisions appear to have reopened the claim (and denied it on the merits). However, regardless of the decision of the RO as to whether to reopen the previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. At the time of the last final denial in August 2008, the evidence of record included the Veteran’s service treatment records from both periods of active service, which shows two complaints of back pain in 1961. Since the time of the last final denial, new evidence associated with the claims file includes an April 2013 opinion by Dr. S.R. of the VA medical center in which he noted the Veteran’s reported history of a back injury in 1961, and that a 2011 MRI revealed degenerative disc disease and spondylosis of the lumbosacral spine, and opined that the Veteran’s low back condition is at least as likely as not related to his active service. The Board finds that this new evidence associated with the claims file since the last final denial is not only new but material. Therefore, the claim is reopened. However, before a decision may be made on the claim, the Board finds this matter should be remanded for further development, as explained below. 2. Entitlement to service connection for bilateral hearing loss The Veteran also claims that he has bilateral hearing loss due to his active service. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be rebuttably presumed for certain chronic diseases, including sensorineural hearing loss, which are manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, 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 threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s January 1961 enlistment examination report shows whispered voice testing was 15/15 feet. See Records, uploaded September 2017 at p.17 of 44. His November 1963 separation examination report shows pure tone thresholds were as follows (converted from ASA to ISO): Hertz (decibels) 500 1000 2000 4000 RIGHT 30 20 20 25 LEFT 25 20 20 20 See Records, uploaded September 2017 at p.26 of 44. His May 1964 enlistment examination report and May 1968 separation examination report from his second period of active service show whispered voice testing was 15/15 feet. See Records, received September 2017 at p.20 and 30 of 42. There is no record of diagnosed hearing loss, or pure tone thresholds or speech recognition scores showing any hearing loss manifesting to a compensable degree by VA regulatory criteria within one year of discharge from either the Veteran’s first or second period of active service. Therefore, service connection for hearing loss may not be presumed. See 38 C.F.R. §3.307, 3.309 (2017). Post-service, the first record of diagnosed hearing loss is a June 2003 VA audiology consult, which shows the Veteran had bilateral sensorineural hearing loss at frequencies above 3000 hertz. See CAPRI, received March 2017 at p.827 of 854. An October 2017 VA examination report shows the Veteran reported he participated in combat activity in Vietnam. In that regard, the Board notes that the Veteran’s personnel records show he served aboard the U.S.S. Tanner in Vung Tau, Vietnam around February 1967. See Records, received May 2018 at p.22 of 35. He reported a history of in-service noise exposure while serving as wheeled vehicle mechanic (Army) and commissaryman (cook) aboard ships (Navy). He reported working with loud vehicles, engines, and impact tools. He reported exposure to 105 Howitzer cannons, and loud engines and machinery on large ships. He reported a post-service history of occupational noise exposure working in shipyards, and recreational noise exposure woodworking at home. Audiological testing revealed pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 3000 4000 RIGHT 25 35 40 60 75 LEFT 25 30 40 60 75 Speech recognition scores using Maryland CNC word lists were 86 percent in the right ear, and 96 percent in the left ear. The VA examiner recorded a diagnosis of bilateral mixed hearing loss. Because the Veteran’s pure tone thresholds were shown on examination in October 2017 to be 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz bilaterally, the VA regulatory criteria for a bilateral hearing loss disability are met. See 38 C.F.R. §3.385 (2017). The October 2017 VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to his active service. The examiner reasoned that the Veteran’s November 1963 separation examination revealed normal hearing, his May 1968 separation examination revealed a normal whispered voice test, and there was no documentation of any permanent positive threshold shift in service. The examiner also reasoned that the Veteran’s reported post-service history of occupational and recreational noise exposure is a factor for his hearing loss, and that presbycusis is a factor based on his age of 74. The Board has reviewed all of the other medical evidence of record. The Board acknowledges that the Veteran recently submitted October 2018 private audiology test results, but the records did not include any etiological opinion. In light of the above evidence of record, the Board finds that a preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss is related to his active service. The Board finds the October 2017 VA examiner’s opinion to be highly probative with regard to the etiology of the Veteran’s hearing loss, as it is supported by the medical evidence of record. No hearing loss was shown at separation from either period of active service, in fact, no hearing loss was shown until 2003, several decades after the Veteran’s separation from service. Also, he admits to post-service occupational and recreational noise exposure. The October 2017 VA examiner’s opinion is not contradicted by any other medical opinion of record. Regarding the Veteran’s alleged combat service, the Board finds this report to be not credible in light of the fact that no combat service is reflected on the Veteran’s DD Form 214s or in any of his personnel records, and because a June 2003 VA psychology record shows the Veteran specifically denied combat service. See CAPRI, received March 2017 at p.825 of 854. Regardless, the Board acknowledges the Veteran’s reported history of loud noise exposure in service as a wheeled vehicle mechanic, and exposure to engine noises and 105mm howitzers on ships, which the Board finds to be credible. There is simply no evidence of hearing loss, however, until 2003, several decades after separation from service, which prolonged period weighs heavily against the claim. The Board acknowledges that the Veteran, as a lay person, believes that his hearing loss is in fact related to his active service. Ultimately, however, the Board finds that the opinion of the October 2017 VA examiner to be more probative based on the examiner’s medical education, training, and experience as an audiologist. By contrast, the Board finds that the Veteran is not shown in this case to be competent to render an etiological opinion regarding mixed hearing loss - he is not shown to have any relevant education, experience, or training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board concludes that service connection for bilateral ear hearing loss is not warranted; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 3. Entitlement to service connection for tinnitus The Veteran also claims that he has tinnitus due to loud noise exposure in service. As explained above, the Board finds the Veteran’s report of loud noise exposure in service to be credible – particularly in light of his military occupational specialty in the Army as a wheeled vehicle mechanic and his service aboard ships. The Veteran reported to the VA examiner in October 2017 that he has experienced tinnitus since 1961 in service. The Board acknowledges that the Veteran, as a lay person, is competent to report experiencing tinnitus since service, as this particular type of condition has been found by the Court of Appeals for Veterans Claims (Court) to be capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Therefore, because the Veteran is shown to have experienced loud noise in service and he has reported experiencing tinnitus since service, which the Board finds to be credible and capable of lay observation, the Board finds that service connection is warranted and will grant the claim. The Board acknowledges that the October 2017 VA audiology examination shows the examiner opined that the Veteran’s tinnitus is not at least as likely as not related to his active service. The Board finds the VA examiner’s etiological opinion regarding the Veteran’s tinnitus to warrant some probative weight; however, it is in relatively equal balance with the Veteran’s competent and credible reports of an onset of tinnitus during service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, in summary, service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that he has a low back disability due to his active service. He asserts that he injured his back in 1961 during exercises in the Army in basic training, and again during his second period of service in the Navy on the deck force painting over the side of the ship and handling heavy lines. See Statements, received December 2016 at p.1 of 3, and received August 2018. A May 1961 service treatment record notes “lumbral pain.” See Service treatment records, uploaded September 2017 at p.4. An August 1961 record shows he reported lower thoracic area pain for six months. See id. at p.5. There is no record of complaint during his second period of service. There is no record of back complaints in the Veteran’s service treatment records from his second period of active service. Post-service, a February 2003 VA treatment record shows the Veteran reported a three-week history of progressively worsening low back pain after pouring 350 pounds of concrete putting up fence posts. He reported he had not seen a doctor in 20 years (it is unclear if he was referencing back treatment or treatment generally. See CAPRI, received March 2017 at p.853 of 854. More recent private treatment records show the Veteran is followed for degenerative disc disease of the lumbar spine. See Records, received August 2018 at p.9 of 35 (assessment). A November 2017 VA examination report shows the examiner diagnosed degenerative arthritis of the spine, intervertebral disc disease, sequestered disc fragment left L3-L4 neural foramen, and L5-S1 bilateral foramen narrowing. The examiner opined that the Veteran’s low back disability is less likely than not related to his active service. The examiner reasoned, among other things, that the Veteran’s service treatment records only showed one record of lumbar pain in May 1961, and no complaints of any thoracic pain. However, as noted above, a subsequent August 1961 record shows the Veteran reported lower thoracic area pain for six months. Therefore, regrettably, the Board finds that this matter should be remanded so that the VA examiner who provided the November 2017 VA examination may review the August 1961 service treatment record and provide an addendum opinion to clarify whether the Veteran’s current low back condition is related to his active service. In addition, the VA examiner should review the April 2013 opinion letter by Dr. S.R. of the VA medical center in which he opined that the Veteran’s low back disability is related to his active service based on the Veteran’s reported history of back injuries and treatment during both periods of service (albeit there is no record of complaint from his second period of active service). See “Service treatment records,” received December 2016 at p.1 of 12. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. The Veteran claims that he has an acquired psychiatric disorder, to include depression and anxiety, due to his active service. In the alternative, the Board finds that statements made by the Veteran to clinicians, addressed below, have raised the theory as to whether he has an acquired psychiatric disorder secondary to his claimed low back disability (which low back claim is also on appeal herein). The Veteran’s service treatment records from his first period of service show that in December 1962, he requested an appointment with a psychiatrist and reported impending difficulties. He reported he had difficulties in the past with the law and needed help to prevent this from occurring again. See Service treatment records uploaded September 2017 at p.23 of 27. Post-service, a May 2003 VA treatment record shows the Veteran reported he was discouraged about his back pain and feared he would be eventually unable to support his family. Chronic back pain with apprehension related to his condition/prognosis was diagnosed. See CAPRI, received March 2017 at p.828 pf 854. Another May 2003 VA treatment record shows he reported depression due to an inability to work due to back pain and related financial strain. See id. at p.832. A June 2003 VA psychology consult shows the Veteran reported chronic back pain, and that its impact on his work (part-time grounds manager) was depressing to him. See CAPRI, received March 2017 at p.822 of 854. The June 2003 record also notes a reported childhood history of an abusive alcoholic stepfather, and that he reported marital difficulties and the death of his mother one year prior. More recent VA treatment records show that he has been followed for a diagnosed major depressive disorder or depression. See CAPRI, received March 2017 at p.1 of 854, and received December 2017 at p.25 of 29. The Veteran was afforded a VA examination in November 2017. The examiner opined that the Veteran does not have any anxiety disorder. The examiner diagnosed a persistent depressive disorder, and opined it is less likely than not related to his active service. The examiner reasoned that the Veteran’s depression likely preexisted service due to his childhood history of abuse by his stepfather. The examiner did not address whether the Veteran’s depressive disorder was secondary to his claimed low back disability. The Board notes, however, that no depression was noted on entry into the Veteran’s first or second period of active service. See Service treatment records, uploaded September 2017 at p.17, and received May 2018 at p.20. Therefore, the presumption of soundness applies, and the burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993); 38 U.S.C. § 1111 (2012). Recently, the Veteran submitted an August 2018 letter by Dr. J.K. of Kaiser Permanente in which Dr. J.K. wrote that a recent August 2018 psychiatric intake was performed, and that the Veteran has diagnosed depression, anxiety, and PTSD. See Records, received September 2018 at p.1 of 7. In light of the above, the Board finds that this matter should be remanded for a new VA examination to clarify a) whether the Veteran has anxiety or PTSD, b) whether any acquired psychiatric disorder is caused by service on a direct basis, c) whether any acquired psychiatric disorder is secondary to his claimed low back disability, and d) whether the Veteran’s depression clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. The matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion from the same VA examiner who provided the November 2017 VA examination relating to the claimed low back disability to address whether it is “at least as likely as not” (probability of 50 percent or more) that the Veteran has a low back disability related to either period of active service. The claims folder must be provided to the examiner for review, including a copy of this remand. Ask the VA examiner to review the August 1961 service treatment record showing the Veteran reported low thoracic pain for six months. See Service treatment records, received September 2017 at p.5. In addition, ask the VA examiner to review the April 2013 opinion letter by Dr. S.R. of the VA medical center in which he opined that the Veteran’s low back disability is related to his active service. See “Service treatment records,” received December 2016 at p.1 of 12. If the same VA examiner who prepared the November 2017 VA examination report is no longer available, obtain a medical opinion from a similarly qualified examiner. Any opinion must be accompanied by a complete rationale. 2. Afford the Veteran a VA examination to address the nature and etiology of his claimed acquired psychiatric disorder, to include depression and anxiety. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should opine as to whether it is “at least as likely as not” that any acquired psychiatric disorder found on examination a) had its onset in service or is otherwise directly related to the Veteran’s active service, or b) was caused or aggravated by the Veteran’s claimed low back condition (note the low back condition is currently on appeal). An examination is necessary if required by the examiner to form an opinion. If the examiner opines the Veteran has a depressive disorder that preexisted service, please ask the VA examiner to address whether there is “clear and unmistakable evidence” that it both preexisted service and was not aggravated by service. Ask the VA examiner to review the December 1962 service treatment record noting that the Veteran requested an appointment with a psychiatrist and reported impending difficulties. See Service treatment records uploaded September 2017 at p.23 of 27. Ask the VA examiner to specifically address whether the Veteran has anxiety or PTSD. In that regard, please ask the examiner to review the August 2018 Dr. J.K. letter from Kaiser Permanente (received September 11, 2018). Any opinion must be accompanied by a complete rationale. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel