Citation Nr: 18159964 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-57 377 DATE: December 20, 2018 ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for hepatitis C has been received. New and material evidence sufficient to reopen a claim of entitlement to service connection for right ear hearing loss has been received. New and material evidence sufficient to reopen a claim of entitlement to service connection for a seizure disorder has been received. Service connection for an acquired psychiatric disorder is denied. Service connection for right ear hearing loss is denied. REMANDED Service connection for hepatitis C is remanded. Service connection for a seizure disorder is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for Hepatitis C. 2. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss. 3. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for a seizure disorder. 4. The Veteran’s psychiatric disorder was not incurred in or due to his time in service. 5. The Veteran’s right ear hearing loss was not incurred during his time in service. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for Hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a seizure disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1979 to November 1983. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). 1. New and material evidence to reopen a claim of entitlement to service connection for Hepatitis C The Board will first address the Veteran’s claim to reopen his claim of service connection for Hepatitis C. In August 2005, a Board decision denied service connection for Hepatitis C because the evidence did not show an in-service incurrence of Hepatitis C. The Veteran did not appeal and the decision became final. The Veteran submitted his current claim of service connection for Hepatitis C in November 2012. A May 2014 rating decision denied reopening of the claim because the evidence submitted was not new and material. The Veteran appealed. Relevant evidence submitted before the previous final denial included military personnel records, medical records, and the Veteran statements. Relevant evidence submitted since the previous final denial medical records, a medical opinion regarding the etiology of the Veteran’s Hepatitis C, and rating decisions. While evidence submitted after the previous final denial is new in that it was not of record at the time of the prior denial, it is not material in that it does not relate to the unestablished facts necessary to substantiate the Veteran’s claims and does not address the basis for the prior denials. The evidence does not show the Veteran had an in-service incurrence of Hepatitis C. The medical opinion submitted in November 2012 indicates the Veteran’ Hepatitis C was more likely than not due to his time in service from needle and air needle contamination The Board finds that this evidence is “new” because it was not before the Board in 2005. The Board also finds that the new evidence is “material” because it relates to whether his HCV is the result of an event during service. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for HCV. Hence, the appeal to this extent is allowed. 2. New and material evidence to reopen a claim of entitlement to service connection for right ear hearing loss 3. New and material evidence to reopen a claim of entitlement to service connection for a seizure disorder The Board turns now to the Veteran’s claim to reopen his claim of service connection for a seizure disorder and for right ear hearing loss. Service connection was originally denied in a July 1997 rating decision which was affirmed again in a September 1997 rating decision. Service connection was denied because the evidence did not show the Veteran suffered from seizures or right ear hearing loss while in service and there was no relationship between any current seizure or right ear hearing disabilities and his time in service. The Veteran did not appeal, and this decision became final. The Veteran filed his present claim for service connection for a seizure disorder in November 2012. A May 2014 denied reopening of the claim because the evidence submitted was not new and material. The Veteran appealed. Relevant evidence submitted before the previous final denial included service treatment and personnel records, medical records, Veteran statements, statements from the Veteran’s employer, and rating decisions. Relevant evidence submitted after the previous final denial includes Social Security Disability documents, medical records, and medical opinions. A November 2012 examiner opined the Veteran’s seizure disorder and his right ear hearing loss were both due to his time in service. Because this evidence is new and material in that it relates to unestablished facts necessary to substantiate the Veteran’s claim, the Veteran’s claim of service connection for seizures and service connection for right ear hearing loss will be reopened. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishment of service connection for PTSD in particular requires: (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). 4. Service connection for an acquired psychiatric disorder A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection for anxiety and depression pursuant to Clemons and recharacterized them as shown on the cover page of this decision. The Veteran has been diagnosed with adjustment disorder mixed with anxiety and depressed mood along with an unspecified alcohol disorder and PTSD. (See December 2012 medical record, January 2014 examination.) The Veteran’s STRs are negative for symptoms or treatment of any mental health symptoms while in service. However, in an October 2016 statement of the case (SOC), the Veteran’s stressor was conceded. In November 2012, a private (non-VA) chiropractor opined the Veteran had a provisional diagnosis of PTSD which was more likely than not due to the Veteran’s time in service. However, the examiner acknowledged he did not treat PTSD and would defer to the specialty practitioner’s judgment insofar as the Veteran’s PTSD diagnosis was concerned. Because this examiner’s expertise was not in diagnosing and treating PTSD, the Board affords this opinion little weight. In January 2014, the Veteran was afforded an examination for his mental health by an examiner who treats and diagnoses PTSD. The examiner opined the Veteran’s mental health diagnosis was less likely than not incurred in or caused by the Veteran’s time in service. The examiner explained the Veteran’s mental health conditions were related to multiple psycho-social stressors, including the Veteran’s unemployment, financial concerns, and foreclosure on his home. The Veteran has asserted this examination was inadequate. However, the Board finds this examination to be adequate. The examiner reviewed the Veteran’s records, provided a detailed history of the Veteran’s social, marital, and familial history, noted the Veteran’s relevant medical treatment history, and completed the examination questionnaire. The examiner offered an opinion as to the nature and etiology of the Veteran’s diagnosed mental health disorders and explained their origins. This examiner’s opinion is the most probative evidence of record on this issue. Overall, the preponderance of the evidence is against the claim. Therefore the appeal is denied. 5. Service connection for right ear hearing loss The Board turns now to the Veteran’s claim of service connection for right ear hearing loss. The Veteran has right ear hearing loss for VA purposes. (See December 2013 examination.) The Veteran contends his right ear hearing loss is due to his exposure to acoustic trauma while in service, in particular, engine noise from ships and aircraft and artillery fire. The Veteran has several audiograms while in service (See November 1979, April 1980, October 1981, November 1981 audiograms), none of which show right ear hearing loss for VA purposes. The Board acknowledges the Veteran’s statements of how he was exposed to loud noise while in service and that the Veteran did serve aboard ships. These statements appear consistent with the circumstances of his service. However, a nexus to service is not established. A private (non-VA) chiropractor offered an opinion in November 2012. He opined that the hearing loss was at least as likely as not the Veteran’s right ear hearing loss was due to his time in service. The Board finds this opinion of limited probative value as it is clear from the face of the opinion that this chiropractor is not competent to offer an opinion as to audiology matters. It is commonly known and understood that chiropractors treat musculoskeletal disorder with a practice limited to this area. See Fountain v. McDonald, 27 Vet. App. 258, 273, 274-75 (2015). To this extent, the Board does not presume the competence of this chiropractor’s op to address hearing loss. See Wise v. Shinseki, 26 Vet. App. 517, 527 (2014). A December 2013 examiner opined that while the Veteran had right ear hearing loss, it was less likely than not the Veteran’s current right ear hearing loss was due to the Veteran’s in-service noise exposure. The examiner, after reviewing the Veteran’s record, explained that there was no audiometric shift in the Veteran’s right ear hearing during service. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Board notes the Veteran’s right ear hearing loss did not manifest to a compensable degree within one year after separation. The Veteran’s medical records are also negative for evidence showing right ear hearing loss for many years after his separation from service and it was not until recently he had a diagnosis of right ear hearing loss. While the Veteran believes his right ear hearing loss is related to service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of noise exposure, audiometric testing, and the mechanisms of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinion. Overall, the preponderance of the evidence is against the claim. Therefore, the appeal is denied. REASONS FOR REMAND 1. Service connection for hepatitis C This issue is remanded for a new VA examination. This particular claim has a long history, including a prior appeal to the Court of Appeals for Veterans Claims (Court or CAVC). There is a corresponding amount of evidentiary development. Recently, however, the Veteran has offered a private (non-VA) opinion from November 2012 indication a relationship because hepatitis C and air jet injector inoculations. This examiner’s opinion is not entirely adequate to resolve the appeal for several reasons, including a question as to the examiner’s competence to address the question being a chiropractor. Likewise, the examiner stated, for example, the Veteran “was diagnosed with Hepatitis C while on active duty.” Although this is the main medical question at issue for this claim, the private examiner gave no supporting evidence or rationale for this conclusory statement. Although not completely adequate, this private examiner’s opinion nonetheless provides an indication that the Veteran’s hepatitis C may have resulted from the inoculations. A VA examination has not been undertaken to address this question. 2. Service connection for a seizure disorder is remanded The Board cannot make a fully-informed decision on the issue of service connection for a seizure because no VA examiner has opined whether a seizure disorder may be due to service. There is currently conflicting evidence on this question. The Veteran maintains that his seizure disorder is due to suffering a traumatic brain injury (TBI) while in a boxing match in service. See July 1997 testimonial statement. To this extent, it is commonly understood and within a lay person’s competence to recognize that head injuries may result in seizures. Yet, the post-service medical records, such as in December 1995 and September 1998, document the Veteran’s complaints of seizures occurring since the early 1990s. He variously attributed this to the termination of alcohol use or chemical exposures in his workplace. The Board finds that a VA examination is needed as one has not been undertaken. 3. Entitlement to a compensable rating for left ear hearing loss The Board finds a remand is necessary for the Veteran’s claim for a compensable rating for his left ear hearing loss. The Veteran claims his left ear hearing loss has gotten worse since his last examination. The Veteran last had an examination for his left ear hearing loss in December 2013, almost five years ago. The Board finds a contemporaneous examination is required in order to make a determination for the Veteran’s increased rating claim. Therefore, the matter will be remanded. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 4. TDIU The the development and decision on the remanded increased rating issue will significantly impact a decision on the TDIU issue. Therefore, a remand of the TDIU issue is required. The matter is REMANDED for the following action: 1. Obtain any additional relevant evidence, including updated VA medical records. 2. Arrange for the pertinent information to be reviewed by an appropriate clinician to determine the nature and etiology of any hepatitis C. An in-person examination should be scheduled if determined necessary by the examiner. The examiner is asked to address each of the following: (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including air gun jet injection inoculations during service. (b.) In answering this question, the examiner should account for all of the Veteran’s potential risk factors. The examiner should then explain which risk factor is more likely the cause of the Veteran’s hepatitis C. If this is not possible, the examiner should explain why. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his seizure disorder. The examiner is asked to address whether the Veteran’s seizure disorder is at least as likely as not related to an in-service injury, event, or disease, including head injuries while boxing. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to hearing loss alone and discuss the effect of the Veteran’s hearing loss on any occupational functioning and activities of daily living. 5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran’s representative a supplemental statement of the case and give an opportunity to respond thereto. C. BOSELY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel