Citation Nr: 1815348 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 13-30 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from January 1962 to February 1965, followed by a period of National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and February 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware and White River Junction, Vermont. The Veteran filed a notice of disagreement (NOD) with the rating decision in March 2011. A statement of the case (SOC) was issued in September 2013, and the Veteran perfected his appeal in October 2013. The Veteran was scheduled for hearings September 2014 and in August 2016. The Veteran did not attend either hearing. As such, the Board finds the Veteran's request for a hearing withdrawn. See 38 C.F.R. § 20.702(d) (2017). A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Veteran's posttraumatic stress disorder (PTSD)/nervous disorder claim has been properly characterized as an acquired psychiatric disorder. The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue in this case is whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Additional evidence, in the form of VA treatment records dated from 2014 to 2016, was associated with the claims file subsequent to the issuance of the most recent SOC, dated September 2013. This evidence was not accompanied by a waiver and has not yet been considered by the agency of original jurisdiction (AOJ). However, a review of the treatment records reflects that the records did not provide information that would help substantiate the issues adjudicated herein. The records do not provide relevant evidence relating to the claims of service connection for an acquired psychiatric disorder, bilateral hearing loss, or tinnitus, that were not already in earlier records. Therefore, there is no prejudice to the Veteran in the Board rendering the decision below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A November 2005 rating decision denied the Veteran's claim of service connection for an acquired psychiatric disorder; the Veteran was notified of this decision and did not appeal the decision. 2. Additional evidence received since the November 2005 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim of service connection for an acquired psychiatric disorder, and raises a reasonable probability of substantiating that claim. 3. The Veteran's current acquired psychiatric disability was not incurred in-service and is not related to his active service. 4. The Veteran's bilateral hearing loss was not incurred in-service, is not related to his active service, and did not manifest within one year after separation from active service. 5. The Veteran's tinnitus was not incurred in-service, is not related to his active service, and did not manifest within one year after separation from active service. CONCLUSIONS OF LAW 1. The November 2005 rating decision denying reopening of a claim of service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received sufficient to reopen the claim for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for an acquired psychiatric disorder have not all been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for tinnitus have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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(a). "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). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). I. Claim to Reopen The Veteran's claim for service connection for a nervous disorder was initially denied in an October 1972 rating decision. The Veteran did not file appeal the decision by filing a notice of disagreement (NOD) with this decision. In October 1993, the Veteran filed a new claim for PTSD and a nervous condition. The Veteran's claim for service connection for PTSD was denied on the merits in a February 1994 rating decision. The claim was denied as the record did not indicate a current diagnosis of PTSD. The Veteran did not file a NOD with this rating decision. As such, this rating decision is final. 38 C.F.R. § 20.1103. Where service connection for a disability has been denied in a final decision, a subsequent claim of service connection for that disability may 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. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran requested reopening of his claim for a psychiatric disorder in August 2005. The RO found that no new and material evidence had been submitted adequate to reopen the claim for service connection for a psychiatric disorder and notified the Veteran. The Veteran did not appeal this rating decision. As such, the November 2005 rating decision is the last final disallowance of this claim. The evidence associated with the Veteran's claims file at the time of the November 2005 rating decision includes, but is not limited to the Veteran's STRs, VA medical center records dated 1976 through 1993, private treating records dated 1972 to 1993, a June 1994 VA examination, Social Security Administration records, and the Veteran's lay statements. The evidence associated with the claims file subsequent to the November 2005 rating decision includes, but is not limited to VA medical center treating records dated from 2009 to 2011, an October 2010 VA examination, and a September 2013 VA examination. The evidence submitted is new, in that it was previously not of record. As noted above, the RO denied the claim in February 1994 in part because the evidence did not demonstrate a current diagnosis of PTSD. The VA treatment records indicate a possible diagnosis of PTSD, which the RO deemed sufficient to trigger VA's duty to assist by providing a medical opinion. Therefore, this evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As such, new and material evidence has been present to reopen the previously denied claim for service connection for an acquired psychiatric disorder. II. Acquired Psychiatric Disorder The Veteran claims that his acquired psychiatric disorder, claimed as PTSD and a nervous disorder, is related to his active service. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). The evidence of record does not contain a current diagnosis of PTSD. While the Veteran's VA treatment records indicated a suggested diagnosis of PTSD, they do not contain a definitive diagnosis of PTSD. The Veteran was afforded a VA examination in October 2010 in order to clarify the Veteran's diagnosis. The examiner determined that the Veteran did not have a current diagnosis of PTSD. However, the examiner found that Veteran did have diagnosis of adjustment disorder and an additional diagnosis of a personality disorder. These diagnoses were confirmed by the September 2013 VA examination. The Board notes that a personality disorder is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2017). However, the Veteran's diagnosed adjustment disorder does qualify as a disease or injury for VA compensation purposes. Therefore, the Veteran meets the first element of service connection. Regarding the second element of service connection, the Board finds that the Veteran did have an in-service occurrence of psychiatric symptoms. The Veteran's STRs show that in February 1963, the Veteran reported a variety of symptoms including headaches, dizziness, nausea, and anxiety. In April 1963, these were identified as psychoneurotic complaints and the physician's impression was an unspecified psychoneurotic disorder. In January 1965, the Veteran reported nightmares, depression and excessive worry, and nervous trouble on his report of medical history on separation from active service. The physician did not report any psychiatric abnormalities on the clinical evaluation, but noted that the Veteran experienced nightmares secondary to heavy indigestion of food prior to sleeping, and that his depression, excessive worry, and nervous trouble were due to domestic problems. Therefore, the Board finds the Veteran meets the second element of service connection. As such, this case turns on nexus, specifically whether the Veteran's in-service symptoms are related to his current psychiatric disorder. The preponderance of evidence is against finding a nexus between the Veteran's in-service symptoms and current psychiatric disorder. As noted above, while the Veteran experienced some psychoneurotic symptoms in service, he did not have a specific psychiatric diagnosis. In 1972, 7 years after his active service, the Veteran was admitted to private inpatient treatment for alcoholism. The physician noted the Veteran had symptoms of anxiety and depression, but indicated no previous psychiatric history and stated that he felt the Veteran suffered from sociopathic personality with chronic anxiety and depression. The Veteran was again admitted to private inpatient treatment in 1977 for alcohol abuse. No psychiatric disorder was identified. In addition, the Veteran was admitted for inpatient treatment in 1991 and 1992 and diagnosed with intermittent explosive disorder and a personality disorder. In 1993, the Veteran was treated at a VA medical center for lapses in memory and threats of violence against his family and was diagnosed with a personality disorder. A June 1994 VA examination diagnosed the Veteran with intermittent explosive disorder and a personality disorder. The examiner did not provide an opinion regarding service connection. As noted above, the Veteran's VA medical records from 2010 indicate a possible diagnosis of PTSD. However, the Veteran's diagnosis was clarified as chronic adjustment disorder by the October 2010 VA examiner and in December 2010 treatment note by a VA physician. The October 2010 VA examiner did not provide an opinion as to whether it was at least as likely as not that his psychiatric disorder was related to service. The Veteran was afforded a VA examination in September 2013. The examiner reviewed the Veteran's claims file, including his STRs, and considered the Veteran's reports of psychiatric symptoms during service. The examiner was of the opinion that the Veteran's current psychiatric disorder is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that in-service events were unlikely to be the cause of the types of symptoms which the Veteran currently experiences. The examiner noted that the Veteran reported his depressive symptoms were caused by his unemployabiliy and his financial situation. The Board finds the September 2013 VA examiner opinion to be the most probative evidence of record as to whether the Veteran's psychiatric disorder is related to his service. The examiner's rationale is logical and well-reasoned, and he took into consideration the entire record, including the Veteran's service and post-service treatment records, as well as the Veteran's historical accounts regarding his in-service symptoms. The Board has also considered the Veteran's statements that his psychiatric disorder was caused by his active service. However, whether the Veteran's acquired psychiatric disorder is related to his active service is a complex medical question, and is not within the realm of knowledge of a lay person or determinable by observation with one's senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran's statement is not competent evidence and not probative. The claims file does not contain any competent evidence relating the Veteran's acquired psychiatric disorder to his service. As such, the preponderance of the evidence is against the grant of service connection on a direct basis. The representative contends that VA did not adequately assess the Veteran's stressors. However, as noted above, the Veteran does not have a current diagnosis of PTSD. As such, evaluation of his stressors is not required as the Veteran does not meet the first element for service connection for PTSD. The preponderance of the evidence weighs against a grant of service connection for the Veteran's acquired psychiatric disorder. As such, the claim of entitlement to service connection for an acquired psychiatric disorder must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. III. Bilateral Hearing Loss and Tinnitus The Veteran contends that his hearing loss and tinnitus were caused by exposure to loud noise during his active service. The November 2010 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. As such, the first element of service connection has been met. Regarding the second element, service treatment records (STRs) do not indicate the Veteran complained of, or was diagnosed with, hearing loss or tinnitus during service. However, the Veteran has credibly reported being exposed to loud noise during service. The Veteran stated that he was exposed to loud noise from jet engines and firing weapons in-service. As such, the Board accepts that the Veteran was exposed to loud noise in-service. Therefore, this case turns on whether the Veteran's currently diagnosed hearing loss and tinnitus are related to his in-service noise exposure. The Veteran was afforded a VA examination in November 2010. The examiner indicated in-service noise exposure from working as security for B-52 bombers on the flight line and helicopter maintenance. The Veteran reported recurrent tinnitus, which he told the examiner he believed started 10 years ago. The VA examiner's pure tone audiometric examination showed the following results, in decibels (dB): HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 65 65 LEFT 20 20 45 65 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 in the left ear. The VA examiner was of the opinion that it is less likely than not the military noise contributed to the Veteran's hearing loss. The examiner noted that the Veteran had a normal enlistment and separation examinations in the Air Force. In addition, the Veteran reported onset of his hearing loss as 2-3 year prior to the examination. While the examiner notes that there are no military medical records available from the Veteran's time in the National Guard, the examiner found the Veteran was not exposed to excessively loud noise in his job duties with the National Guard. The examiner also stated that it is less likely as not that military noise exposure contributed to the Veteran's tinnitus. The examiner provided the rationale that the Veteran reported the onset of tinnitus as 10 years prior to the examination, which would have been approximately 8 years after his National Guard service. To the extent the Veteran has asserted that he has had symptoms of tinnitus and hearing loss in-service, he is competent to do so. However, the Veteran's statement regarding the onset of tinnitus and hearing loss are not credible due to internal inconsistent statements, and inconsistency with other evidence of record. In weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's STRs do not indicate any complaints of hearing loss or tinnitus while in-service. His report of medical history on separation did not indicate any problems with his ears or hearing. His examination on separation did not indicate any auditory problems. The Veteran did not undergo pure tone threshold audiometric testing on enlistment examination; however, no hearing problems were noted. The Veteran did undergo pure tone threshold testing at separation in January 1965. Audiology testing standards were set by the American Standards Association (ASA) until November 1, 1967. After that date, audiometric tests were conducted using International Standards Organization (ISO) or American National Standards Institute (ANSI) measurement. However, as it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standards for evaluating hearing loss were not changed to require ISO-ANSI units until September 9, 1975. Current VA regulations that define hearing loss for VA purposes are based on the dB measurement recorded in the ISO-ANSI units. 38 C.F.R. § 3.385 (2017). Accordingly, VA uses a system to convert ASA units to ISO-ANSI units that adds 15 dB to 500 Hz, 10 dB to 1000, 2000, and 3000 Hz, and 5 dB to 4000 Hz. As such, the Veteran's converted separation examination shows the following results, in dB: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 5 15 15 LEFT 15 0 5 15 10 The results of this audiometric test do not show hearing loss of VA purposes. 38 C.F.R. § 3.385. Post-service, the Veteran's private treatment records and VA treatment records do not indicate any abnormalities with the Veteran's ears or hearing. The first report of hearing loss or tinnitus in the medical recorded is the November 2010 VA examination. In addition, as noted above, the Veteran reported at the November 2010 VA examination that he did not have symptoms of hearing loss until a few years prior to the 2010 examination and symptoms of tinnitus until 10 years prior to the examination, or around approximately 2000. Therefore, the Veteran's statement that he had symptoms of tinnitus and hearing loss in-service is not credible considering the inconsistent statements made by the Veteran, discussed above. The Board finds the November 2010 VA examiner's opinion to be the most probative evidence of record as to whether the Veteran's current hearing loss and tinnitus are related to his active service. The examiner's rationale is logical, well-reasoned, and thorough, and she took into consideration the entire record, including the Veteran's service and post-service treatment records, as well as the Veteran's historical accounts regarding his military history and in-service noise exposure The Board has considered the Veteran's contention that his hearing loss and tinnitus are the result of acoustic trauma caused by noise exposure in-service. However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology this question as whether noise exposure many years earlier resulted in hearing loss and tinnitus years later is not a simple question. As such, the Veteran's statement is not competent or probative evidence. The preponderance of evidence is against a finding that the Veteran's hearing loss or tinnitus were incurred in-service and against establishing a nexus between the Veteran's current tinnitus and hearing loss and his active service. In addition, the preponderance of evidence is against a finding that his tinnitus or hearing loss manifested itself to a degree of disability of ten percent or more within a year of discharge from service. Regarding continuity of symptomatology, as noted above, the Veteran's statements of symptoms since service have been found to be not credible. Therefore, the claims of service connection for tinnitus and bilateral hearing loss must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. ORDER The claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs