Citation Nr: 18158419 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 09-28 988 DATE: December 14, 2018 ORDER The claim of service connection for bilateral hearing loss is reopened and to this extent only is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for a skin disorder, to include squamous cell carcinoma, actinic keratoses, and seborrheic keratoses, is remanded. The issue of entitlement to service connection for a psychiatric disorder claimed as depression, posttraumatic stress disorder (PTSD), adjustment disorder, and/or cognitive disorder, is remanded. FINDINGS OF FACT 1. A May 1998 Board of Veterans’ Appeals (Board) decision that denied service connection for bilateral hearing loss was not appealed and the decision became final. 2. Evidence received since the May 1998 Board decision is neither cumulative nor redundant of evidence previously of record, and when presumed credible raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The May 1998 Board decision that denied the Veteran’s claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria to reopen the claim of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from July 1954 through January 1958. This matter comes before the Board on appeal from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has re-characterized the issue of entitlement to service connection for PTSD to more broadly encompass entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and somatoform disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim is remanded for further development. The Board remanded the issues on appeal for a videoconference in January 2013 and for additional development in November 2013. A February 2013 letter advised the Veteran that he was scheduled for a hearing in March 2013. In March 2013, the Veteran’s attorney advised the RO that the Veteran had recently been convicted of felony offenses and was incarcerated for an extended period. The attorney stated that he was withdrawing as the Veteran’s representative and requested that the scheduled hearing be postponed should the Veteran desire to pursue his disability claim, and to allow him to obtain other legal representation. While the attorney asked that the scheduled hearing be postponed, a note from the Veterans Law Judge before whom the Veteran was scheduled to testify, made on the date of the scheduled hearing, indicates that the hearing had been cancelled. There are no outstanding hearing requests of record. In November 2013, the RO was requested to obtain treatment records from the Birmingham VA Medical Center (VAMC), which the Birmingham VAMC responded in July 2017 that the hard and electronic copies of the medical treatment records were sent to the scanning site and that there were no more records available for the Veteran. The RO was also requested to provide the Veteran a corrective VCAA notice advising him how to substantiate his requests to reopen his service connection claims for bilateral hearing loss and depression, which the RO sent in December 2016. The RO was requested to obtain a statement from the Veteran regarding his claimed in-service stressors, forward any stressor information received to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification, and then forward that information to the 2012 VA examiner to get a supplemental PTSD medical opinion. In a May 2018 letter sent to the Veteran, the RO informed the Veteran that it required more detailed information regarding the claimed stressor and that what was provided did not meet the minimum level of detail needed for VA to seek assistance from the U.S. Army and/or JSRRC. There is no record in the file indicating a response from the Veteran. Finally, the RO was requested to offer the Veteran a VA examination for his claimed skin disorder, however, the Veteran’s October 2018 letter indicates that he is unavailable to have a physical examination at a VA hospital because of his incarceration. There is an August 2018 document reflecting the exam scheduling request was cancelled due to the Veteran’s unavailability. Therefore, the Board finds the directives having been substantially complied with and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. “New” evidence is defined as 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). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. The Veteran originally filed a claim for entitlement to service connection for bilateral hearing loss in January 1994. In a July 1994 rating decision, the RO denied the Veteran’s original claim because the evidence did not show the Veteran incurred hearing loss during active service and his December 1957 report of medical examination at separation showed hearing to be within normal limits. The RO notified the Veteran of the decision. The Veteran filed a notice of disagreement (NOD) in September 1994. A statement of the case (SOC) was issued in November 1994. The Veteran submitted a substantive appeal (VA Form 9) in January 1995. The claim was certified to the Board in March 1998 and was denied in a decision dated May 21, 1998. Therefore, the decision became final once it was mailed to the Veteran. See 38 U.S.C. § 7104; 38 C.F.R. § 3.104(a). In January 2007, the Veteran sought to reopen the claim. In the January 2008 rating decision, the RO denied reopening the claim because the evidence submitted was not new and material. The Veteran appealed the January 2008 rating decision. The Board must still determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). The last final denial regarding the claim is the May 1998 Board decision. Since the May 1998 Board decision is final, the Veteran’s current service connection claim for bilateral hearing loss, may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Se¬e 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see Barnett v. Brown, 8 Vet. App. 1 (1995). Evidence received since the May 1998 Board decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. A January 2012 VA examination was conducted concerning whether the Veteran’s hearing loss is at least as likely as not related to service. This examination assesses sensorineural hearing loss in both ears, represents evidence that had not previously been associated with the file, and discusses the possibility of establishing direct service connection. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). As this document represents evidence not previously submitted to agency decision makers and relates to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 2. The issue of entitlement to service connection for bilateral hearing loss is remanded. 3. The issue of entitlement to service connection for tinnitus is remanded. 4. The issue of entitlement to service connection for a skin disorder, to include squamous cell carcinoma, actinic keratoses, and seborrheic keratoses, is remanded. 5. The issue of entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD), adjustment disorder, and/or cognitive disorder, is remanded. The Board has determined that additional development is required. A VA exam is needed. The Veteran was scheduled for a VA examination for PTSD and his skin disorder, however, he indicated he was unable to have a physical examination at a VA facility because he is incarcerated. The Board will attempt to tailor assistance in the development of the claim as to the Veteran’s circumstances. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The matters are REMANDED for the following action: 1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Contact the Veteran’s prison facility to determine whether a VA examination is possible and, if so, whether the Veteran should be escorted to a VA medical facility or examined at the prison by VHA personnel, prison medical providers at VA expense, or fee-based providers contracted by VHA. ALL EFFORTS TO ARRANGE FOR EXAMINATION MUST BE DOCUMENTED IN THE CLAIMS FILE. IF AN EXAMINATION IS NOT FEASIBLE, CONTACT THE PRISON AND REQUEST A COPY OF ALL THE VETERAN’S MEDICAL AND COUNSELING RECORDS. 4. If examination is feasible or once the RO has received a copy of all the Veteran’s medical and counseling records from the prison, schedule the Veteran for an appropriate VA examination but if not feasible conduct a file review to determine the nature and etiology of his skin disorder. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Identify all currently-diagnosed acquired skin disorders to include whether the Veteran has squamous cell carcinoma, actinic keratoses, and seborrheic keratoses. (b.) Identify whether any of the Veteran’s current skin disorders incurred in service or caused by an in-service injury, event or illness. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: • December 1957 Report of Medical Examination at Separation indicates a normal skin and lymphatics clinical evaluation. See “STR,” received January 25, 1994, page 1 of 34. • September 1995 Radiology Report indicating two one-centimeter popliteal cysts. See “Medical Treatment Record – Government Facility,” received February 16, 2017, page 38 of 60. • September 1999 Primary Care Practice Group Progress Notes indicating no rash. See “Medical Treatment Record – Government Facility,” received February 16, 2017, page 4 of 57. • December 2006 Dermatology Clinic Note indicating multiple hyperkeratotic erythematous papules on forehead, temples, and forearms. However, no evidence of skin cancer. See “CAPRI,” received January 12, 2017, page 494 of 573. • August 2008 Dermatology Clinic Note indicating multiple actinic keratoses on face and forearms and no history of skin cancer. See “CAPRI,” received January 12, 2017, page 350 of 573. • November 2011 Primary Care Outpatient Note indicating painful hyperkeratotic skin lesions to face. See “CAPRI,” received January 12, 2017, page 7 of 573. • February 2012 Clinic Notes indicating squamous cell carcinoma. See “Medical Treatment Record – Non-Government Facility,” received May 2, 2012. • December 2016 Statement in Support of Claim indicating exposure to JP-4 jet fuel while fueling aircraft and constant contact with fuel and fumes. See “VA 21-4138 Statement in Support of Claim,” received January 3, 2017. • October 2018 Correspondence indicting the Veteran’s skin cancer was caused by JP-4 fueled used to fuel aircraft. See “Correspondence,” received October 22, 2018. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 5. If examination is feasible or once the RO has received a copy of all the Veteran’s medical and counseling records from the prison, return the claims file to the examiner who conducted the January 2012 VA PTSD examination. If that examiner is no longer available, conduct the following development with a similarly qualified examiner. If the conduct of an examination is not feasible, conduct a file review by an appropriately-qualified examiner. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Identify all currently-diagnosed acquired psychiatric disorders, other than depression, to include whether the Veteran has PTSD, anxiety, somatoform disorder, or any other mental diagnosis. (b.) Identify whether any of the Veteran’s current psychiatric diagnoses incurred in service or caused by an in-service injury, event or illness. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: • December 1957 Report of Medical Examination at Separation indicating a normal psychiatric clinical evaluation. See “STR,” received January 25, 1994, page 1 of 34. However, the Veteran reported frequent trouble sleeping for several years, with his problem being greater since arriving in Korea. • May 1994 General Medical Exam indicating dysthymia for about six years with episodes of depression, which worsened after home and business destruction. The pertinent diagnosis was depressive disorder in remission with treatment. See “VA Examination,” received May 13, 1994, pages 1 and 2 of 5. • August 2007 VA Mental Health Note indicating a history of cognitive disorder, not otherwise specified, and ruling out PTSD. See “CAPRI,” received February 15, 2017, page 3 of 36. • October 2007 VA PTSD Screening Interview/ Social Work indicating the Veteran did meet the full DSM IV criteria for PTSD. See “CAPRI,” received February 15, 2017, page 12 of 36. • January 2012 VA Medical Examination for PTSD indicating the Veteran did not meet the criteria for PTSD. The examiner acknowledged that the records indicated the Veteran had re-experiencing symptoms in the past, but he was not presently reporting any re-experiencing symptoms. See “VA Examination,” received January 11, 2012, page 13 of 30. • December 2016 Statement in Support of Claim for Service Connection for PTSD indicating in-service stressors. See “VA 21-0781, Statement in Support of Claim for PTSD,” received January 3, 2017. • October 2018 letter indicating the Veteran was treated at the Birmingham VAMC by a licensed psychiatrist for PTSD. See “Correspondence,” received October 22, 2018. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 6. If examination is feasible or once the RO has received a copy of all the Veteran’s medical and counseling records from the prison, return the claims file to the examiner who conducted the January 2012 VA hearing loss and tinnitus examination. If that examiner is no longer available, conduct the following development with a similarly qualified examiner. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Identify whether the Veteran has bilateral hearing loss and/or tinnitus. (b.) Identify whether the Veteran’s current bilateral hearing loss and/or tinnitus incurred in service or caused by an in-service injury, event or illness. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: • December 1957 Report of Medical Examination at Separation indicating hearing were WV (whispered voice) 15/15 bilaterally. See “STR,” received January 25, 1994, page 3 of 34. • July 1980 Medical Certificate and History indicating no hearing loss or tinnitus. See “Medical Treatment Record – Government Facility,” received February 16, 2017, page 5 of 50. • May 1994 Compensation and Pension Exam Report indicating severe hearing deficit in both ears. See “Medical Treatment Record – Government Facility,” received February 16, 2017, page 19 of 59. • October 1996 Hearing Testimony indicating hearing loss since service and tinnitus occurring periodically with an unknown onset. See “Hearing Testimony,” received October 22, 1996, pages 5 and 6 of 24. • December 2006 Audiogram. See “Medical Treatment Record – Government Facility,” received February 16, 2017, page 12 of 13. • December 2006 Audiology Consult indicating the Veteran did not meet the eligibility requirement for a hearing aid. See “CAPRI,” received February 15, 2017, page 14 of 36. • March 2007 Statement in Support of Claim for Service Connection for PTSD indicating hearing loss due to having no ear protection while servicing aircraft and on firing range. See “VA 21-0781, Statement in Support of Claim for PTSD,” received April 4, 2007. • August 2008 Audiogram. See “Medical Treatment Record – Government Facility,” received February 16, 2017, page 10 of 13. • August 2008 Audiology Consult indicating mild to profound sensorineural hearing loss in each ear. Hearing aids were recommended. See “CAPRI,” received February 15, 2017, page 14 of 36. • September 2008 Audiology Note issuing the Veteran a hearing aid. See “CAPRI,” received February 15, 2017, page 12 of 36. • January 2012 Compensation and Pension Exam Report indicating the examiner cannot provide a medical opinion regarding the etiology of the Veteran’s hearing loss and tinnitus without resorting to speculation. See “VA Examination,” received January 11, 2012, pages 7 and 10 of 30. • March 2012 Statement in Support of Claim indicating hearing loss has worsened since claim was filed. See “VA 21-4138 Statement in Support of Claim,” received March 23, 2012. • December 2016 Statement in Support of Claim indicating hearing loss due to working on flight line without ear protection in 1954/1955 and tinnitus due to climbing on and off the wings of the aircraft during fueling. See “VA 21-4138 Statement in Support of Claim,” received January 3, 2017. • October 2018 Correspondence indicting the Veteran was never provided with any type of hearing protection and that he was given hearing aids by the VA in 2008. See “Correspondence,” received October 22, 2018. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. (Continued on the next page)   7. Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel