Citation Nr: 18158813 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-47 370 DATE: December 18, 2018 ORDER As new and material evidence has not been received, the petition to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss is denied. As new and material evidence has not been received, the petition to reopen previously denied claim for entitlement to service connection for decreased vision is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, and to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In a June 1999 rating decision, the RO denied a claim for service connection for bilateral hearing loss because the evidence failed to demonstrate that the Veteran had current right ear hearing loss disability and failed to demonstrate his pre-existing left ear hearing loss disability was aggravated by service; the Veteran did not appeal or submit new and material evidence within one year of that decision and it is final. 2. The evidence associated with the claims file subsequent to the June 1999 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, is cumulative or redundant of the evidence previously of record, and is insufficient to raise a reasonable possibility of substantiating the claim. 3. In the June 1999 rating decision, the RO denied the Veteran’s claim for service connection for decreased vision because the evidence failed to demonstrate a current disability for VA purposes; the Veteran did not appeal or submit new and material evidence within one year of that decision and it is final. 4. The evidence associated with the claims file subsequent to the June 1999 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for decreased vision impairment, is cumulative or redundant of the evidence previously of record, and is insufficient to raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for decreased vision. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1977 to June 1999. The Board notes that the Veteran’s claim of service connection for PTSD was previously denied in a May 2009 rating decision. New and material evidence would ordinarily be required to reopen this claim. 38 U.S.C. § 5108 (2012). However, in July 2010, VA amended its adjudication regulations regarding claims for service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010). The Board notes that, “[w]hen a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant’s claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation.” See Routen v. West, 142 F.3d 1434, 1441, citing Spencer v. Brown, 17 F.3d 368, 373 (Fed. Cir. 1994). Accordingly, the Board will adjudicate the claim on a de novo basis without requiring new and material evidence to reopen. Furthermore, the Board has expanded the claim for service connection for PTSD and depression to include any other psychiatric disorders of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Petition to Reopen The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, 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 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). 1. New and material evidence to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss Initially, the Board notes that VA regulations provide that paired 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 (2018). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1112 (2012). The Veteran’s August 1977 enlistment examination showed he had left ear hearing loss as defined by VA, and as such, his left ear is not presumed sound at the time of his enlistment. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). The RO previously denied service connection for bilateral hearing loss in a June 1999 rating decision because the evidence failed to demonstrate that he had current right ear hearing loss as defined by VA, and that his pre-existing left ear hearing loss was not aggravated by service. The Veteran did not file a timely notice of disagreement, nor did he submit additional new and material evidence within a year of the June 1999 rating decision, and therefore the rating decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). The Veteran now seeks to reopen his previously denied claim for service connection for bilateral hearing loss. The new evidence received subsequent to the June 1999 rating decision includes VA treatment records. These medical records show treatment for complaints of bilateral hearing loss, but the audiometric findings contained therein fail to show right ear hearing loss as defined by 38 C.F.R. § 3.385 (2018), and none of these records suggest his left ear hearing loss was aggravated by the Veteran’s military service. The Board finds that the new evidence received since the June 1999 rating decision is not material to reopen a claim of service connection for bilateral hearing loss, as it does not pertain to the issue of whether the Veteran had current right ear hearing loss as defined by VA or relate to a finding that his left ear hearing loss was aggravated by military service. Accordingly, the Board finds that new and material evidence has not been submitted to reopen the Veteran’s claim of service connection for bilateral hearing loss, and the claim is denied. See 38 C.F.R. § 3.156. 2. New and material evidence to reopen previously denied claim for entitlement to service connection for decreased vision Initially, the Board notes that VA regulations provide that refractive error of the eyes is not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9 (2018); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as refractive error of the eyes is not a disease or injury within the meaning of applicable legislation relating to service connection. In a June 1999 rating decision, the RO denied the Veteran’s claim for service connection for decreased vision based on the findings from a February 1999 VA examination that showed the Veteran had decreased vision as result of normal aging process. The RO determined that there was no evidence of eye injury in service, and the Veteran’s decreased vision was result of a refractive error for which VA compensation benefits are not payable. The Veteran did not file a timely notice of disagreement, nor did he submit additional new and material evidence within a year of the June 1999 rating decision, and therefore the rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran now seeks to reopen his previously denied claim for service connection for decreased vision. The new evidence received subsequent to the June 1999 rating decision includes VA treatment records. These medical records show treatment for complaints of decreased vision and a current diagnosis of refractive error for which the Veteran was prescribed eye glasses. Here, the additional evidence does not establish that there is a superimposed disease or injury to allow for service connection for refractive error. Rather, the evidence simply reestablishes that the Veteran has refractive error and has been given a prescription for near and distance vision correction. As such, the evidence submitted since the June 1999 rating Board does not relate to an unestablished fact necessary to substantiate the claim for service connection for decreased vision. Accordingly, new and material evidence has not been received to reopen service connection for decreased vision, and the claim is denied. See 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. The Veteran has raised an alternative theory of entitlement based on secondary service connection. He has submitted a March 2014 private medical statement as well as medical literature in support of his claim, and the RO obtained a VA medical opinion in September 2016. While the 2016 VA examiner discussed the March 2014 private medical statement, and determined that the Veteran’s current depressive symptoms were likely caused by his chronic history of alcohol abuse, the VA examiner did not address whether the Veteran’s depressive disorder was proximately aggravated by his service-connected bilateral callus disorder. On remand, an addendum VA medical opinion is needed to address the question of service connection on secondary aggravation basis. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current acquired psychiatric disorder, to include depression, is at least as likely as not proximately due to pain associated with service-connected disability/aggravated beyond its natural progression by service-connected disabilities. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel