Citation Nr: 18159446 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-45 566 DATE: December 20, 2018 ORDER New and material evidence having been received, the claim for service connection for headaches is reopened. REMANDED The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left knee replacement is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea, to include as due to a psychiatric disability, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches, to include as due to a psychiatric disability or sleep apnea, is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a rating in excess of 10 percent for a right clavicle disability is remanded. FINDINGS OF FACT 1. An April 2015 rating decision denied service connection for headaches. The Veteran did not appeal that decision, or submit new and material evidence within one year of its issuance. 2. Evidence received since the April 2015 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for headaches. CONCLUSIONS OF LAW 1. The April 2015 rating decision that denied service connection for headaches is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received since the April 2015 rating decision is new and material, and the claim for service connection for headaches is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. VA denied the Veteran's claim for service connection for headaches in an April 2015 rating decision. In that decision, VA indicated that the Veteran had not provided evidence indicating that the claimed headache disability was related to service, or a service-connected disability. Reviewing the evidence submitted since the April 2015 rating decision, in a May 2018 private examination report, a private examiner diagnosed major depressive disorder related to service. The examiner stated that the Veteran’s depressive disorder caused the Veteran's headaches. The May 2018 private examination report is new, because it was not before VA at the time of the April 2015 rating decision. When presuming the credibility of the new evidence, as is required only when determining whether to reopen a previously denied claim for service connection, it is also material because it suggests that the Veteran's headaches are related to service. New and material evidence having been received, the claim for service connection for headaches is reopened. To that extent only, the claim is allowed. REASONS FOR REMAND 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. Regarding the Veteran's bilateral hearing loss and tinnitus claims, in a June 2015 VA treatment record, a VA examiner reported performing an audiometric examination. The examiner indicated that an audiogram displaying the results of the examination could be found in the VA Medical Center’s computer system. The record of evidence does not contain a copy of the audiogram. A remand is necessary to obtain a copy of the June 2015 audiogram. Additionally, in May 2016, VA provided the Veteran with a VA audiology examination, performed by a private provider at VA’s request, to determine the etiology of the claimed bilateral hearing loss and tinnitus disabilities. As part of that examination, the examiner was to examine the complete record of evidence and provide an opinion. As the examiner did not have access to the June 2016 audiogram, a remand is necessary to schedule additional VA audiology examination. 3. Entitlement to service connection for a left knee replacement is remanded. Regarding the claim for service connection for a left knee replacement, in several VA treatment records, the Veteran reported undergoing a knee replacement operation at Pennsylvania Hospital in approximately 2014. As the records regarding that procedure are not included in the record of evidence, an additional remand is required. 4. Entitlement to service connection for a low back disability is remanded. 5. Entitlement to service connection for sleep apnea, to include as due to a psychiatric disability, is remanded. 6. Entitlement to service connection for hypertension is remanded. 7. Entitlement to service connection for headaches, to include as due to a psychiatric disability or sleep apnea, is remanded. 8. Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. Regarding the other claims for service connection, the evidence indicates that the Veteran served in the Marine Corps Reserves until May 1980 following his November 1976 separation from active service. As any service treatment records from the Veteran's period of reserve service may be relevant to the claims, the Veteran’s complete service medical records for his reserve service should be obtained. Regarding the claim for service connection for a psychiatric disability, the Veteran claims that he developed a psychiatric disability due to incidents that occurred during a period of incarceration during active duty service. The claims file does not appear to contain complete service personnel records for the period of active duty service, to include a legible copy of the Veteran's Certificate of Release of Discharge from Active Duty, DD Form 214. As those records may contain information regarding the Veteran’s service, a remand is required to obtain them. Additionally, a remand is necessary to obtain any records regarding the Veteran's reported period of incarceration, to include any treatment records from the correctional facility at the Marine Corps Air Station Cherry Point. As the Veteran is claiming service connection for a psychiatric disability, to include PTSD, related to assaults that occurred during his period of incarceration, a remand is necessary to provide the Veteran with information regarding the cooberation of a claim for PTSD due to an in-service physical assault. The Board cannot make a fully-informed decision on the issue of service connection for a psychiatric disability, because no VA examiner has opined whether the Veteran has a psychiatric disability related to any incident of service. A remand is necessary to schedule an examination. 9. Entitlement to a rating in excess of 10 percent for a right clavicle disability is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. In an April 2018 disability benefits questionnaire, the Veteran reported that he was receiving treatment at a VA facility. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. An April 2018 VA Mental Disorders Disability Beneftis Questionnaire indicates that there may be outstanding and relevant Social Security Administration (SSA) records. A remand is required to allow VA to request those records. The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressors based on personal assault. If more details are needed, contact the Veteran to request the information. 2. Obtain the Veteran’s complete service personnel records for active and reserve service. 3. Obtain any records regarding the Veteran's reported period of in-service incarceration, to include any treatment records from the correctional facility at the Marine Corps Air Station Cherry Point. 4. Obtain the Veteran’s complete service medical records, to include documents pertaining to his service in the Marine Corps Reserves from November 1976 to May 1980. Document all requests for information and all responses in the claims file. 5. Obtain the Veteran’s VA treatment records, to include all records for from May 2017 to the present. Additionally, obtain a copy of the audiogram noted in the June 23, 2015, VA audiology note. 6. Obtain the Veteran’s federal records from SSA. Document all requests for information and all responses in the claims file. 7. Ask the Veteran to complete a VA Form 21-4142 for the Pennsylvania Hospital to obtain records regarding his knee replacement surgery. Make two requests for the authorized records from Pennsylvania Hospital, unless it is clear after the first request that a second request would be futile. If the records are not obtained, notify the Veteran and give him the opportunity to obtain and submit them. 8. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss and tinnitus. The examiner must opine whether any diagnosed disability is at least as likely as not related to an in-service injury, event, or disease. The examiner should also opine as to whether any it is at least as likely as not (50 percent or greater probability) that bilateral hearing loss or tinnitus (1) began during active service, (2) manifested within one year after the Veteran's separation from service, or (3) was noted during service with continuity of the same symptomatology since service. 9. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disability diagnosed during the pendency of the appeal, starting in October 2013, to include PTSD. The examiner should diagnose all psychiatric disabilities found and should specifically state whether or not each criterion for a diagnosis of PTSD is met. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the examiner diagnosed PTSD related to an in-service personal assault, the examiner must opine whether the evidence of record, including the Veteran’s lay statements, statements made by his relatives, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service. 38 C.F.R. § 3.304(f)(5). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. For any other psychiatric disorders diagnosed during the pendency of the appeal, the examiner must opine whether each diagnosed disorder is at least as likely as not (50 percent or greate4r probability) related to any injury, event, or disease during service, to include a nervous condition reported in a May 1976 service medical record. In writing the opinions, the VA examiner should review the private examination reports, dated April 1, 2016; April 2, 2018; and May 21, 2018, each indicating that the Veteran experiences psychiatric disability symptomatology related to service. In writing the opinions, the VA examiner should note any reasons for agreement or disagreement with the private examiners’ opinions. 10. Schedule the Veteran for a VA joints examination of the right shoulder. The examiner must review the claims file and should note that review in the report. The examiner should provide ranges of right and left shoulder motion for active and passive motion. The examiner should state whether there is any additional loss of function due to weakened motion, excess motion, painful motion, fatigability, incoordination, or on flare up. The examiner should state whether there is any nonunion, fibrous union, or malunion of the right shoulder. The examiner should state whether there is dislocation, nonunion, or malunion or the right clavicle. 11. If required as a result of this remand, provide the Veteran with any additional VA examinations deemed necessary, to potentially include examinations to determine the etiology of the Veteran's claimed sleep apnea and headaches disabilities, both claimed, in part, as due to the Veteran's claimed psychiatric disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel