Citation Nr: 18124643 Decision Date: 08/07/18 Archive Date: 08/07/18 DOCKET NO. 15-27 239A DATE: August 7, 2018 ORDER New and material evidence having been received, the issue of entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to an initial compensable rating for headaches is remanded. Entitlement to a rating in excess of 10 percent for a right index finger partial amputation with neuropathy is remanded. Entitlement to a rating in excess of 10 percent for recurrent tinnitus is remanded. FINDINGS OF FACT 1. A September 2007 rating decision denied service connection for bilateral hearing loss. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the September 2007 rating decision denying service connection for bilateral hearing loss is new, not cumulative or redundant of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran does not have a hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The September 2007 rating decision is final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a), (c). 3. The criteria for entitlement to service connection for a hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Coast Guard from May 2002 to September 2006. The Board notes that the Veteran originally claimed entitlement to service connection for depressive disorder, also claimed as anxiety, sleep disturbances and anxiety, and later claimed entitlement to service connection for PTSD. The Board notes that a claim for service connection for an acquired psychiatric disability encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the issue on appeal broadly, to include PTSD, as well as any other currently present acquired psychiatric disability. In a February 2013 rating decision, the regional office (RO) denied entitlement to service connection for bilateral hearing loss and granted entitlement to service connection for tinnitus, rated as 10 percent disabling, right index finger partial amputation with neuropathy, rated as 10 percent disabling, and headaches, rated as 0 percent disabling. In December 2013 correspondence, the Veteran’s representative disagreed with any and all aspects of that decision, including effective dates and ratings assigned. Despite receiving this timely notice of disagreement, the RO only acknowledged the appeal of the denial of entitlement to service connection for bilateral hearing loss. A statement of the case must be issued for the remaining issues. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In this case, new and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been received. The RO denied service connection for bilateral hearing loss in September 2007, finding there was no evidence of a current hearing loss disability. He was notified of the decision and his appellate rights in September 2007. The Veteran did not appeal that decision, or submit additional evidence, within the applicable time period. Therefore, the September 2007 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence of record at the time of the September 2007 rating decision consisted only of VA treatment records and a November 2006 VA Mental Health examination. Evidence associated since the rating decision includes the Veteran’s service treatment records (STRs), VA and private treatment records, additional VA examinations, and the Veteran’s statements. The inclusion of the Veteran’s new examinations is new and material. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been received. The evidence provided addressed the previous unestablished fact of a current disability. It is not redundant. Therefore, reopening of the claim for service connection for bilateral hearing loss is warranted. Lastly, the Board notes that the Veteran’s STRs were received after the September 2007 rating decision. The Board finds the records are not relevant to the claim for bilateral hearing loss. As explained further below, the Veteran does not have a current hearing loss disability for VA purposes, and the STRs do not provide any information on whether the Veteran has a current disability. Thus, the remedy of reconsideration of the decision is not available under 38 C.F.R. § 3.156 (c). Service Connection The Veteran maintains that he is entitled to service connection for bilateral hearing loss. 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)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On the authorized audiological evaluation in August 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 25 LEFT 25 25 15 20 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. Further, there is no assertion by the Veteran, or medical records in the claims file, indicating a worsening of the Veteran’s hearing loss to the point where he would have a hearing loss disability as recognized under 38 C.F.R. § 3.385. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As a result, the Board must deny the claim for service connection for bilateral hearing loss, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), though the Veteran is encouraged to reapply at a time when he feels his hearing has worsened to the point that he may have a hearing loss disability for VA purposes. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Board notes that the claim for service connection for an acquired psychiatric disorder was adjudicated by the RO as a new and material evidence claim. However, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1) (2017). The Board finds that relevant service records showing in-service psychiatric treatment were associated with the Veteran’s claims file after the September 2007 rating decision denying the Veteran’s claim for an acquired psychiatric disorder; as such, the Veteran’s claim must be reconsidered. 38 C.F.R. § 3.156 (c) (2017). The Board finds that a remand is required regarding the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran maintains that his currently diagnosed PTSD is related to events in service; specifically, he asserts that it is related to his experiences patrolling the Potomac River on the first anniversary of September 11, 2001 and the search and rescue missions he took part in where there were no survivors and body bags were needed. In a July 2011 PTSD Stressor Decision, VA conceded that the Veteran was likely to have feared for his life during his assignment to Homeland Security Patrols in Washington, DC and Baltimore, Maryland following the September 11, 2001 attacks. The Veteran was provided VA examinations in November 2006 and February 2013. The November 2006 examiner did not provide a nexus opinion, and the February 2013 examiner attributed the Veteran’s PTSD to the disappearance of his brother when he was 12 years old and the subsequent discovery of his body in 2005. The examiner did not adequately address the Veteran’s experiences on the first anniversary of September 11, 2001 or VA’s concession of those experiences as a stressor, or the Veteran’s participation in search and rescue missions. An addendum opinion was provided in September 2015 and that examiner found that the Veteran’s reported anxiety while on duty patrolling the Potomac River was inadequate to support a diagnosis of PTSD. The examiner acknowledged that the Veteran likely experienced anxiety about a further attack (as did most of the population of the United States), but concluded that there was no clinical evidence that that experience was the basis for a diagnosis of PTSD. The Board finds that these opinions are inadequate as they do not take into consideration all of the Veteran’s reported stressors, nor do any of these opinions discuss the Veteran’s documented psychiatric treatment during service or the July 2011 Stressor Decision. As such, a new examination and opinion is required. 2. Entitlement to an initial compensable rating for headaches, a rating in excess of 10 percent for a right index finger partial amputation with neuropathy, and a rating in excess of 10 percent for tinnitus are remanded. Regarding the aforementioned claims, the Veteran submitted a timely notice of disagreement with a February 2013 rating decision, but a statement of the case has not yet been issued. A remand is required for the Agency of Original Jurisdiction to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159 (e). 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. 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. The examiner is asked to specifically address the Veteran’s in-service psychiatric treatment for anxiety in December 2004, insomnia and anxiety in February 2005, and depressed mood in December 2005; the July 2011 Stressor Decision regarding his experiences on the first anniversary of September 11, 2001; and his participation in search and rescue missions in 2003. 4. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an initial compensable rating for headaches, a rating in excess of 10 percent for a right index finger partial amputation with neuropathy, and a rating in excess of 10 percent for tinnitus. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush