Citation Nr: 18159149 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-16 467 DATE: December 18, 2018 ORDER The previously denied claim of entitlement to service connection for depression is reopened. The previously denied claim of entitlement to service connection for back disability is reopened. Entitlement to service connection for major depressive disorder with psychotic features is granted. Entitlement to service connection for a psychosis for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C. § 1702 is dismissed. Entitlement to service connection for tension headaches is granted. Entitlement to an effective date of January 22, 2010, and no earlier, for service connection for tinnitus is granted. REMANDED Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension is remanded.   Entitlement to service connection for back disability is remanded. Entitlement to service connection for hepatitis B and C is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. FINDINGS OF FACT 1. By a final July 2009 rating decision, the Regional Office (RO) denied service connection for depression. 2. By a final August 2011 rating decision, the RO continued the denial of service connection for back disability because no new and material evidence was submitted. 3. Additional evidence received since the RO’s July 2009 and August 2011 decisions is not cumulative or redundant of the evidence of record at the time of those decisions, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 4. Resolving doubt in favor of the Veteran, the Veteran’s major depressive disorder with psychotic features is aggravated by his service-connected tinnitus and bilateral hearing loss. 5. As service connection for major depressive disorder with psychotic features has been granted herein, the appeal as to the issue of entitlement to service connection for a psychosis for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C. § 1702 is moot.   6. Resolving doubt in favor of the Veteran, the Veteran’s tension headaches are caused by his service-connected tinnitus. 7. The Veteran’s claim for service connection for tinnitus was received by VA January 22, 2010. CONCLUSIONS OF LAW 1. The RO’s July 2009 rating decision that denied service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The RO’s August 2011 rating decision that continued the denial of service connection for back disability because no new and material evidence was submitted is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. New and material evidence has been received to reopen the Veteran’s claims for service connection for depression and back disability. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. 4. The criteria for service connection for major depressive disorder with psychotic features are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 5. The claim for entitlement to VA medical treatment for a psychosis under 38 U.S.C. § 1702 is moot and is dismissed. 38 U.S.C. §§ 1702, 1710, 7105; 38 C.F.R. § 20.101. 6. The criteria for service connection for tension headaches are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).   7. The criteria for entitlement to an effective date of January 22, 2010, and no earlier, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156(b), 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to July 1972. As to the issue of service connection for hepatitis C, a July 2009 rating decision denied service connection at least in part on the basis that there was no current disability. Within one year of the July 2009 rating decision, VA received new and material evidence showing a hepatitic C diagnosis. See December 2009 VA Treatment Record. As new and material evidence was received within one year of the July 2009 rating decision, that rating decision did not become final as to the issue of service connection for hepatitis C. 38 C.F.R. § 3.156(b). Accordingly, the Board will consider the claim on a de novo basis. 1. The previously denied claim of entitlement to service connection for depression is reopened. 2. The previously denied claim of entitlement to service connection for back disability is reopened. In a July 2009 rating decision, the RO denied service connection for depression on the basis that there was no connection to service. In an August 2011 rating decision, the RO continued the denial of service connection for back disability because no new and material evidence was submitted. The Board notes that the claim for service connection for back disability was previously denied in a September 2003 rating decision on the basis that there was no connection to service or to a service-connected disability. The RO notified the Veteran of its decisions, and of his appellate rights, but he did not initiate an appeal of the RO’s July 2009 and August 2011 decisions within one year. Nor was any new and material evidence relating to the Veteran’s claims for service connection for depression and back disability received within a year of the respective decisions. As a result, the RO’s decisions became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claims for service connection for depression and back disability may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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 determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the RO’s July 2009 and August 2011 rating decisions includes a January 2017 opinion from a private psychologist linking the Veteran’s depression to his service-connected hearing loss and tinnitus disabilities and an October 2015 VA treatment record noting the Veteran’s report that his low back pain started in service. This evidence was not before adjudicators when the Veteran’s claims were last finally denied, and it is not cumulative or redundant of the evidence of record at the time of those decisions. The new   evidence relates to unestablished facts necessary to substantiate the claims for service connection for depression and back disability, and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. 3. Entitlement to service connection for major depressive disorder with psychotic features is granted. A January 2017 private examination report shows the Veteran has a current diagnosis of major depressive disorder with psychotic features. The January 2017 private psychologist opined that it is more likely than not that the Veteran’s major depressive disorder is aggravated by his service-connected tinnitus and bilateral hearing loss. The private psychologist cited medical literature showing that hearing loss has a significant biopsychosocial impact on quality of life, and that people with hearing loss are more inclined to experience depression. The private psychologist also cited medical literature reporting that depression is common in individuals with tinnitus, and that there may be an interaction between the two disorders. The private psychologist noted that the May 2013 VA examiner reported that the Veteran’s hearing loss impacts his daily life, including his ability to work, because he requires repetition of conversation. The private psychologist also noted the Veteran’s VA treatment records which show that the Veteran’s tinnitus affects his sleep, concentration, and relaxation. The private psychologist noted the Veteran’s reports regarding how tinnitus and hearing loss impact his life. The Veteran reported that his tinnitus and hearing loss impact his mood. The Veteran reported social isolation and withdrawal as he has trouble communicating with others. He also reported difficulty sleeping due to tinnitus and resulting irritability. Although a December 2013 VA examiner opined that the Veteran’s depressive disorder is not related to service, the VA examiner did not opine as to whether the Veteran’s service-connected bilateral hearing loss and tinnitus aggravated his depressive disorder. Thus, there is no conflicting medical opinion. Viewing the evidence as a whole and in the light most favorable to the Veteran, the Board finds that service connection for major depressive disorder with psychotic features is warranted. 4. Entitlement to service connection for a psychosis for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C. § 1702 is dismissed. As the Veteran has been awarded service connection for major depressive disorder with psychotic features, the issue of service connection for a psychosis for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of his now established award of service connection for psychiatric disability. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. 5. Entitlement to service connection for tension headaches is granted. A September 2017 private examination report shows the Veteran has a current diagnosis of tension headaches. The September 2017 private physician opined that it is as likely as not that the Veteran’s tension headaches are caused by his service-connected tinnitus. The private physician explained that it is known in the medical community that damage to the auditory system resulting in tinnitus can also cause headaches. The private physician cited research indicating that, for individuals with tinnitus, the frequency of a headache is strongly correlated with the severity of tinnitus symptoms. The private physician further explained that the Veteran reported that the ringing in his ears becomes so loud that it results in a headache or exacerbates a headache he is already experiencing. There is no conflicting medical opinion. Accordingly, service connection for tension headaches is warranted. 6. Entitlement to an effective date of January 22, 2010, and no earlier, for service connection for tinnitus is granted. The Veteran seeks an earlier effective date for the grant of his service connection for tinnitus. The general rules for determining the effective date of a claim for service connection are the date of receipt of the claim, or the date of entitlement to service connection, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the Veteran submitted an original claim for service connection for tinnitus that was received January 22, 2010. In a March 2010 rating decision, the RO denied service connection for tinnitus on the basis that there was no diagnosis. The Veteran was notified of the denial in a March 31, 2010 letter. The Veteran submitted private treatment records showing a diagnosis of tinnitus within one year of the March 31, 2010 notification letter. See March 2010 Private Treatment Record. As new and material evidence was received within one year of the March 2010 rating decision, that rating decision did not become final as to the issue of service connection for tinnitus. 38 C.F.R. § 3.156(b). Accordingly, the claim period remained open. Following submission of another claim, service connection for tinnitus was ultimately granted on the basis that the Veteran’s tinnitus had an onset in service. See January 2014 Rating Decision; December 2013 VA Examination Report. Accordingly, as the date of entitlement to service connection preceded the date of receipt of the claim, the date of receipt of the claim is the appropriate date for service connection. An effective date of January 22, 2010, and no earlier, is warranted for service connection for tinnitus. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for back disability is remanded.   3. Entitlement to service connection for hepatitis B and C is remanded. 4. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. 5. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. The Veteran reported that he was receiving disability payments from the Social Security Administration (SSA). See August 2010 Veteran’s Statement. As SSA disability materials may be relevant to the Veteran’s claims, remand is appropriate to obtain the complete medical and administrative records related to any application for SSA disability benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Board cannot make a fully-informed decision on the issue of service connection for back disability because no VA examiner has opined regarding whether the Veteran has a back disability with an onset in service or otherwise related to service. In addition, it appears the Veteran’s bilateral hearing loss disability may have worsened since his last VA examination. An August 2016 VA treatment record noted the Veteran’s report of a possible decrease in hearing and the audiogram taken that day showed a decrease in hearing from the last audiogram in the file. Accordingly, remand is appropriate for a new VA examination to determine the current severity of the Veteran’s bilateral hearing loss. As to the Veteran’s claim for service connection for hepatitis C, the Veteran reported treatment during service in Kitzingen, Germany. On remand, the Veteran should be offered the opportunity to submit information regarding the details of such treatment and the Regional Office should make appropriate efforts to obtain such records. Moreover, it appears there are outstanding relevant VA treatment records. August 2013 and August 2016 VA treatment records reference audiograms that were scanned into the Veteran’s VA treatment records but are not located in the Veteran’s claims file. On remand, outstanding private and VA treatment records should be obtained, including the August 2013 and August 2016 VA audiograms and VA treatment records from May 2017 to the present. The matters are REMANDED for the following action: 1. Provide the Veteran the opportunity to submit information regarding the reported treatment of hepatitis C during service in Kitzingen, Germany. Take all appropriate steps to obtain such records. 2. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. 3. Obtain outstanding VA treatment records, including the August 2013 and August 2016 VA audiograms and VA treatment records from May 2017 to the present. 4. Contact SSA and request the Veteran’s complete SSA records, including any administrative decisions on any application for disability benefits and all underlying medical records which are in SSA’s possession. A copy of any requests sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 5. After obtaining any outstanding records, ask the appropriate orthopedic examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any current thoracolumbar spine disability the Veteran has presented during the claim period (from September 2013 to the present). For each diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had an onset in service or is otherwise related to an in-service injury, event, or disease. For arthritis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested to a compensable degree within a year of separation from service (by July 1973). The examiner should consider all medical and lay evidence of record. The Veteran asserts that he experienced the same kind of back pain that he experiences now during service. See October 2015 VA Treatment Record. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). A complete rationale should be given for all opinions and conclusions expressed. 6. After outstanding records are obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should review the Veteran’s claims file. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should describe all manifestations of the Veteran’s bilateral hearing loss disability, including under the applicable rating criteria. 7. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel