Citation Nr: 18161314 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-05 807 DATE: December 31, 2018 ORDER The appeal to reopen the claim for service connection for bilateral hearing loss is denied. Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT 1. An unappealed March 2011 rating decision denied service connection for bilateral hearing loss based on a finding that such was not related to the Veteran’s service. 2. Evidence received since the March 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss and does not raise a reasonable possibility of substantiating that claim. 3. The preponderance of the evidence is against finding that the Veteran suffers from a current psychiatric disorder incurred during or as a result of his active service. CONCLUSIONS OF LAW 1. The March 2011 rating decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(b). 2. Evidence received since the March 2011 rating decision is not new and material, and the criteria for reopening of the claim for service connection for bilateral hearing loss have therefore not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1974 to November 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the VA Regional Office (RO) in Boston, Massachusetts. 1. The appeal to reopen a claim of service connection for bilateral hearing loss is denied. Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold, intended to “enabl[e] rather than preclude[e] reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). A March 2011 rating decision denied the Veteran’s original claim of bilateral hearing loss based on a finding that there was no evidence that this disability was related to his service. The Board notes that an April 2011 VA general examination is in the record; however, although new, the examination is not material as it did not relate to any unestablished fact necessary to substantiate the Veteran’s claim. The Veteran did not appeal the March 2011 rating decision and it became final. 38 U.S.C. § 7105. Evidence of record at the time of the March 2011 rating decision included the Veteran’s service treatment records (STRs) and a March 2011 VA audiological examination (wherein the examiner incorrectly determined that the Veteran did not have a hearing loss for VA purposes). The March 2011 rating decision corrected that error by finding that the Veteran did in fact have hearing loss for VA purposes but that such was not related to service. Evidence received since the March 2011 rating decision includes additional VA treatment records and a September 2016 VA hearing loss examination where the examiner determined that puretone thresholds could not be tested after the Veteran became frustrated and left the clinic without completing the examination. Reviewing this additional evidence, the Board finds that no new evidence received is material as it does not pertain to unestablished facts necessary to substantiate this claim. The medical records are essentially devoid of information regarding the etiology of the Veteran’s hearing loss. No new lay statements, medical opinions, or other evidence pertaining to the etiology of the Veteran’s hearing loss have been submitted since the March 2011 decision. While a second VA examination was provided, this evidence is not material since the Veteran left before the examination could be completed. Additionally, there is no evidence that he has requested that the examination be rescheduled. The Board emphasizes that the duty to assist and provide the Veteran with a VA examination is a two-way street, and his failure to complete the VA examination does not create a duty for VA to provide any additional examinations relating to this claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for bilateral hearing loss may not be reopened. 2. Service connection for an acquired psychiatric disorder is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Although the Veteran generally claims that he suffers from an acquired psychiatric disorder as a result of active service, he has not provided any evidence supporting this claim. His STRs are negative for any complaint, treatment, or diagnosis of any psychiatric disorder. During June 2009 VA treatment, the Veteran denied any sexual trauma or exposure to atrocities during service and stated that he was honorably discharged. See June 2009 VA treatment records. During June 2015 VA treatment, the Veteran’s psychologist noted that he served in Germany as infantry and that he served in a non-combat role; the psychologist also noted the Veteran’s “long (30 year history of substance abuse.” See June 2015 VA treatment records. During August 2015 treatment, the Veteran reported his firm belief that he saw an alien spacecraft during service and that he was implanted with a tracking device in his wrist. See August 2015 VA Treatment records. His VA treatment records include diagnoses of substance abuse, mood disorder, including bipolar disorder, and adjustment disorder. In July 2016, the RO sent the Veteran correspondence requesting a VA Form 21-4142 for St. Elizabeth’s Hospital. There is no indication in the record that the Veteran responded to this request. The Board emphasizes that the duty to assist is a two-way street, and due to his failure to respond to the request, VA is without recourse to obtain records from St. Elizabeth’s Hospital. See Wood, 1 Vet. App. at 193. Although VA medical examinations or opinions were not provided in connection with this claim, the Board finds that one is not necessary to make a decision on the claim. The record does not contain competent lay or medical evidence supporting the Veteran’s claim of a current psychiatric disorder that arose during or as a result of active service. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, there is no competent or credible evidence that the Veteran suffered an event, injury, or disease in service that caused or could be associated with an established event, injury, or disease in service. Absent these requirements, and given the Veteran’s failure to assist in the development of his claim (by providing the requested VA Form 21-4142), no VA examination is necessary. Thus, VA’s duty to assist has been met. While VA treatment records show the Veteran has received diagnoses of, and was treated for, various psychiatric disabilities, the earliest evidence that somewhat addresses the matter of a nexus between his psychiatric disability and service does not support his claim (and instead it attributes his mental health issues to substance abuse). While the Veteran is competent to report symptoms, he is not competent to identify the etiology of any underlying psychiatric disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007. This is a complex medical question that requires medical expertise regarding the significance of symptoms noted, and whether they constitute the constellation of symptoms needed to support a specific psychiatric diagnosis. Therefore, the Veteran’s own statements regarding the etiology of his psychiatric disabilities have no probative value. Accordingly, as the preponderance of the evidence is against the Veteran’s claim, the claim for service connection for a psychiatric disability must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). T. MATTA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks, Associate Counsel