Citation Nr: 18160840 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-35 901 DATE: December 28, 2018 ORDER The claim to reopen the claim of entitlement to service connection for acquired psychiatric disability is granted. The claim to reopen the claim of entitlement to service connection for bilateral hearing loss disability is granted. REMANDED The reopened claim of entitlement to service connection for acquired psychiatric disability is remanded. The reopened claim of entitlement to service connection for bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. In September 2000, a U.S. Department of Veterans Affairs (VA) Regional Office (RO) denied claims of entitlement to service connection for hearing loss and acquired psychiatric disabilities. The Veteran did not appeal this decision so it became final. 2. Evidence received since the September 2000 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for hearing loss and acquired psychiatric disabilities – since then, the RO has found tinnitus warranted based on acoustic trauma during service, and since then the Veteran was diagnosed with psychiatric disability while serving as a reservist. CONCLUSIONS OF LAW 1. The September 2000 rating decision which denied the claims of entitlement to service connection for hearing loss and acquired psychiatric disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. The criteria for reopening the claims of entitlement to service connection for hearing loss and acquired psychiatric disabilities have been met. 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 from November 1990 to March 1995. He also served as a reservist until 2017. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a VA RO. As noted earlier, new and material evidence has been received to reopen service connection claims for hearing loss and psychiatric disabilities. The issues will be remanded for additional development. REASONS FOR REMAND The Veteran has indicated that he believes his hearing loss and psychiatric disabilities should be service connected based on active duty and on reserve service. Additional development should be conducted into the nature and extent of his reserve service. Further, he should be provided additional VA compensation examinations into his claims. See 38 U.S.C. § 101 (2012); 38 C.F.R. §§ 3.1, 3.6(a) (2018). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. Include in the record any outstanding VA treatment records. Ensure that all service treatment records (STRs) pertaining to reserve service are included in the claims file. In particular, include in the claims file any medical reports (e.g., medical evaluation board report, physical evaluation board report) pertaining to medical discharge from reserve service. In statements dated in 2016 and 2017, the Veteran indicated that he was pending medical discharge from reserve service due to psychiatric disability. All records/responses received while conducting the foregoing development must be associated with the claims file. 2. With the Veteran’s assistance, detail in a memorandum his periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) since discharge from active duty in March 1995. 3. After the foregoing development has been completed, schedule an examination to determine the nature and etiology of any bilateral hearing loss disability. After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or higher) that any current hearing loss disability is due to acoustic trauma experienced during active duty, any period of ACDUTRA, or any period of INACDUTRA? (b). If the answer to (a) is negative, and it is determined that the Veteran had a hearing loss disability prior to any period of reserve service, is it at least as likely as not that pre-service hearing loss disability increased in severity during any period of ACDUTRA or INACDUTRA? (c). If pre-service hearing loss disability increased in severity during any period of ACDUTRA or INACDUTRA, is it clear and unmistakable (i.e., undebatable) that the pre-service hearing loss disability was not aggravated (i.e., permanently worsened) by such service? In other words, is it clear and unmistakable that any in-service increase in severity you might find was due to the natural progress of the disorder? The examiner should not address (c) unless it is found under (b) that the Veteran had hearing loss disability prior to commencement of reserve service, and that the pre-service hearing loss disability as likely as not increased in severity during a period of ACDUTRA or INACDUTRA. If it is found that pre-service hearing loss disability either did not exist or, if it did exist, did not increase in severity during such service, (c) must be ignored. Please explain in detail any opinion provided. 4. After the development noted in paragraphs #1 and 2 has been completed, schedule an examination to determine the nature and etiology of any acquired psychiatric disability. After reviewing the claims file, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or higher) that any diagnosed acquired psychiatric disability is due to active duty, any period of ACDUTRA, or any period of INACDUTRA? (b). If the answer to (a) is negative, is it at least as likely as not that any pre-service psychiatric disability increased in severity during any period of ACDUTRA or INACDUTRA? In answering (b), discuss the lay and medical evidence of record showing that the Veteran was diagnosed with psychiatric disabilities prior to, and during, periods of reserve service. Further, discuss any relevant medical findings noted in reserve service STRs (e.g., any medical board report). (c). If pre-service psychiatric disability increased in severity during any period of ACDUTRA or INACDUTRA, is it clear and unmistakable (i.e., undebatable) that the pre-service psychiatric disability was not aggravated (i.e., permanently worsened) by such service? In other words, is it clear and unmistakable that any in-service increase in severity you might find was due to the natural progress of the disorder? The examiner should not address (c) unless it is found under (b) that pre-service psychiatric disability as likely as not increased in severity during a period of ACDUTRA or INACDUTRA. If it is found that pre-service psychiatric disability did not increase in severity during such service, (c) must be ignored. Please explain in detail any opinion provided. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ronquillo, Law Clerk