Citation Nr: 18131908 Decision Date: 09/05/18 Archive Date: 09/05/18 DOCKET NO. 16-04 373 DATE: September 5, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, major depressive disorder (MDD), and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The October 2012 rating decision denying the Veteran’s claim for service connection for tinnitus was not appealed, nor was new and material evidence received within one year. 2. New and material evidence received since the October 2012 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The unappealed October 2012 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.160(d)(1), 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran’s claim for service connection for tinnitus has been received. 38 U.S.C. § 5108(a) (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1992 to August 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge during a January 2017 videoconference hearing. A transcript is of record. The Veteran filed a request to reopen his claim for entitlement to service connection for tinnitus in April 2015. His claim was previously denied in October 2012 and not appealed. In order to reopen a claim that was denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2012). The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen this claim. 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claims should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The evidence of record in October 2012 included VA medical records, service treatment records (STRs), and a VA examination that stated the Veteran’s tinnitus began during childhood. In July 2017, the Veteran testified that his symptoms of tinnitus began during his active duty service, not during childhood. In February 2017, the Veteran submitted lay statements This evidence is new, as it was not previously considered in the prior final rating decision, and is material as it tends to substantiate the claim. The newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-118. Accordingly, the Veteran’s claim for service connection for tinnitus is reopened. REASONS FOR REMAND Although the Veteran has only claimed entitlement to service connection for PTSD, the Board has broadened the claim to include any acquired psychiatric disorder that may be reasonably encompassed by the Veteran’s description of the claim, the Veteran’s symptoms, and other information of the record, so as not to improperly limit the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 6, (2009). The Board has determined that additional development is necessary and the appeal is, therefore, REMANDED as directed below: 1. Advise the Veteran that he may submit any medical and non-medical evidence not already submitted towards substantiation of his claims of service connection for a mental disorder and for tinnitus. As to PTSD, advise the Veteran in accordance with 38 C.F.R. § 3.304(f)(5) as to the substantiation of claims of service connection for PTSD based on in-service personal assault and as to alternative sources of substantiation. Allow an appropriate period for the Veteran to respond. 2. Obtain all the Veteran’s service treatment and service medical records. 3. Following this development, schedule the Veteran for a VA psychiatric examination to determine if he has a mental disorder related to service. All relevant medical records must be made available to the examiner for review. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (i.) Identify all currently-diagnosed acquired psychiatric disorders; (ii.) Indicate whether each identified acquired psychiatric disorder was caused by an in-service event. This must include specific findings as to whether the Veteran has, or at any time during this appeal had a diagnosis of PTSD, MDD, and anxiety. For each diagnosis, the VA examiner must provide an opinion as to whether the psychiatric disability began during service, was chronically worsened during service, is related to any incident of service, or was manifest as a psychosis within one year after discharge from service. (iii.) IF A DIAGNOSIS OF PTSD IS PROVIDED, the VA examiner should identify the claimed stressor(s) that serve(s) as the basis for the diagnosis of PTSD. The VA examiner must also opine whether the Veteran sustained a sexual assault during service and if so, whether the Veteran has PTSD related to this in-service sexual assault. The VA examiner must take a psychiatric history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the VA examiner must so state, with a complete explanation in support of such a finding. The VA examiner MUST BE ADVISED that actual corroboration of the claimed personal assault and military sexual trauma (e.g., by way of contemporaneous police reports, military disciplinary proceedings, etc.) is not dispositive as to the question of whether the assault/sexual trauma occurred. The Board is requesting that the VA examiner opine as to whether he or she believes that the Veteran sustained a personal assault and/or sexual trauma in service, even without corroboration of record. The Veteran contends that he was the victim of sexual assault, and that he was the perpetrator of a physical assault of another servicemember. For any identified acquired psychiatric diagnoses for which the VA examiner determines there was an in-service stressor of assault, the VA examiner must specifically state whether the Veteran was the victim of the assault or whether the Veteran was the perpetrator of the assault. If the VA examiner finds evidence of malingering or fabrication of symptoms through clinical testing, observation or history, he or she should so state. The examiner’s attention is drawn to the following: * The Veteran contends that he was sexually assaulted during active duty service. He stated that while laying his bunk, a male servicemember impermissibly attempted to grab his genitals. Soon thereafter, the Veteran assaulted the male servicemember. The Veteran reported that he subsequently experienced and continues to experience symptoms of an acquired psychiatric disorder. * The Veteran’s VA treatment records indicate that he was diagnosed with recurrent MDD in February 2016 and moderate anxiety not otherwise specified in February 2016. There are additional notations of anxiety in August and November 2015, and MDD in June 2015. * The Veteran’s VA treatment records of February 2016 demonstrate that the Veteran had a history of suicide attempts, including as a child and in 2015. * In January 2017, the Veteran testified that the day after the purported sexual assault, he and three other servicemembers physically assaulted his perpetrator for which he was subsequently court-martialed. He testified that he reported the sexual assault to his superiors, but he did not believe it was recorded, nor was any action taken in response to the sexual assault. In July 2015, the Veteran stated that he had reoccurring dreams of the physical assault; however, in these dreams he is the victim of the physical assault. He did not state that he has reoccurring dreams of the sexual assault. He reported that he deeply regretted physically assaulting the servicemember, and stated that he was never able to apologize to the victim. He further reported that he experienced symptoms of an acquired psychiatric disorder, to include: missed work, relationship strain, increased alcohol intake, anxiety in interacting with others, and panic attacks. * In January 2017, the Veteran testified that except for the court marital for physical assault, his active duty service performance reports were satisfactory and that he had no other disciplinary actions. * In January 2017, the Veteran testified that, after completing a preliminary analysis, a VA psychiatrist told him (via telephone) that he had a diagnosis of PTSD which was related to his active duty service. The Veteran was afforded 60 days to obtain a statement in writing from the VA psychiatrist; to date, no statement has been received. 4. Schedule the Veteran for a VA examination to determine the nature etiology of the claimed tinnitus. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. The examiner must review the record in conjunction with rendering the requested opinion. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (i.) Identify whether the Veteran has a current diagnosis of tinnitus. (ii.) If the Veteran has a current diagnosis of tinnitus, indicate whether it was caused by an in-service event, injury, disorder, or disease, during the Veteran’s period of active duty service. This must include specific findings and rationale for any opinions provided. The examiner’s attention is drawn to the following: * The Veteran contends that has tinnitus that began during active duty service. He specifically objects to a VA examiner’s notation that the Veteran reported that his tinnitus began during childhood. * In September 2012, the Veteran was afforded a VA examination. The VA examiner reported that the Veteran’s tinnitus began during childhood and was not related to his active duty service. * In July 2017, the Veteran testified that during active duty service he shot shoulder mounted assault weapons (SMAWs), which caused his recurrent tinnitus. He reported that his tinnitus began during active duty service, not during childhood, as indicated by the September 2012 VA examiner. * In July 2017, the Veteran testified that he was issued and used earplugs during active duty service. He also testified that he complained of ringing in his ears during active duty service, although his service treatment records do not demonstrate any such complaints. * In February 2017, the Veteran’s sister reported that the Veteran complained of ringing in his ears during his active duty service, and that he had never complained of this symptom prior to active duty service. * In February 2017, the Veteran’s mother reported that the Veteran’s complaints of tinnitus symptoms began after basic training and that he did not complain of tinnitus symptoms as a child. Thorough explanations must be provided for the opinions. If the examiner cannot provide an opinion without resorting to speculation, he or she should expressly indicate this and state why an opinion cannot be made without resorting to speculation. 5. After completing all indicated development, readjudicate the claim considering all the evidence. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review, if in order. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel