Citation Nr: 19114591 Decision Date: 02/27/19 Archive Date: 02/27/19 DOCKET NO. 15-06 636 DATE: February 27, 2019 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. Service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. In a final rating decision issued in August 2012, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder. 2. Evidence added to the record since the final August 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. 3. At no time during the pendency of the claim does the Veteran have a current disability of posttraumatic stress disorder (PTSD), and the record does not contain a recent diagnosis of such disability prior to the Veteran’s filing of a claim. 4. An acquired psychiatric disorder, other than PTSD, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by bilateral hearing loss, tinnitus, and/or perforation of the tympanic membrane of the left ear. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012) [(2018)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to May 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office. In December 2015, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2016, the Board remanded the case for additional development and it now returns for further appellate review. In September 2018, the Veteran and his representative were notified that the Veterans Law Judge who presided over the December 2015 hearing was no longer at the Board and provided them with an opportunity to testify at another hearing before a different Veterans Law Judge. Such letter informed them that, if no response was received within 30 days, the Board would assume the Veteran did not want another hearing and proceed accordingly. Neither the Veteran nor his representative responded to the letter. Consequently, the Board will assume that the Veteran does not want another hearing and will proceed with the adjudication of his appeal. The Board notes that, while the current appeal was pending, the AOJ issued a rating decision in August 2018 in which it was determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. However, as the Board currently has jurisdiction over such issue, the rating decision is rendered moot. The Board further observes that, since the AOJ’s most recent review of the evidence of record in such rating decision, additional evidence, to include VA treatment records and unrelated VA examination reports. While the Veteran has not waived AOJ consideration of such evidence, the Board finds no prejudice to him in proceeding with a decision at this time as the new evidence is duplicative of that previously considered or irrelevant to the instant matter. 38 C.F.R. § 20.1304(c). In addition to the current matter, the Veteran has also perfected an appeal as to the issue of the propriety of the reduction of the rating for his bilateral hearing loss from 10 percent to noncompensable, effective July 1, 2017. However, as he has requested a Board hearing before a Veterans Law Judge in connection with such appeal, the matter will be the subject of a separate Board decision issued at a later date. Further, the Board notes that the August 2018 rating decision also denied entitlement to a total disability rating based on individual unemployability. Thereafter, the Veteran entered a notice of disagreement as to such denial in January 2019. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the AOJ. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. By way of background, the Veteran filed his original claim for service connection for an acquired psychiatric disorder in November 2011. Thereafter, in an August 2012 rating decision, the AOJ considered the Veteran’s service treatment and personnel records and post-service VA treatment records, and denied service connection for an acquired psychiatric disorder. In this regard, the AOJ determined that the evidence did not show that the Veteran experienced a stressful event in service, including fear of hostile military or terrorist activity, and his service treatment records were negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. Further, the AOJ found that the evidence did not show a currently diagnosed disorder or a link between such claimed disorder and the Veteran’s military service. In August 2012, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. In this regard, while he submitted an application to reopen such previously denied claim in January 2013, i.e., within one year of the issuance of the August 2012 rating decision, such submission does not contain the requisite information to be considered a notice of disagreement. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the August 2012 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012) [(2018)]. 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 decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the August 2012 rating decision, additional evidence demonstrating a currently diagnosed acquired psychiatric disorder has been received. Additionally, the Veteran has offered additional details surrounding the alleged in-service events that resulted in such disorder. Furthermore, he has put forth a new theory of entitlement, i.e., that his current acquired psychiatric disorder is caused or aggravated by his service-connected bilateral hearing loss, tinnitus, and/or perforation of the tympanic membrane of the left ear. Consequently, as the newly received evidence addresses the nature and potential etiology of the Veteran’s claimed acquired psychiatric disorder, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the August 2012 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claim for service connection for an acquired psychiatric disorder is reopened. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to bilateral hearing loss, tinnitus, and/or perforation of the tympanic membrane of the left ear. As the AOJ considered the Veteran’s claim for service connection for an acquired psychiatric disorder on the merits in the July 2014 rating decision, December 2014 statement of the case, and September 2016 supplemental statement of the case, there is no prejudice to the Veteran in the Board adjudicating such claim on the merits at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, as the result of in-service events, to include when he was accidently sprayed in the face with jet fuel at Ft. Bragg and participated in war games in South Korea. He testified that he experienced depression, nightmares, and anger since such time. The Veteran further alleges that his acquired psychiatric disorder is caused or aggravated by his service-connected bilateral hearing loss, tinnitus, and/or perforation of the tympanic membrane of the left ear as he was bothered by the need to speak loudly and ask others to repeat themselves. The Board also notes that the Veteran recently argued that his acquired psychiatric disorder is related to his cervical spine disorder; however, as he is not service-connected for a cervical spine disorder, service connection for any disorder as secondary thereto is prohibited by law. Consequently, such theory of entitlement will not be further addressed herein. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In this regard, 38 C.F.R. § 4.125(a) provides that a diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that, while the Veteran has claimed that he has PTSD as a result of in-service stressors pertaining to being sprayed in the face with jet fuel and participating in war games, such a diagnosis is not supported by the medical evidence of record. In this regard, the Board notes that his VA treatment records reflect a diagnosis of PTSD rendered in October 2009; however, the basis of such diagnosis is unclear. Rather, it appears that such a diagnosis was made following a positive PTSD screen. There is no discussion of the stressors that led to such a diagnosis, or a specific finding as to the presence of the criteria required for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders as in effect at such time as required by 38 C.F.R. § 4.125(a). Moreover, the July 2016 VA examiner, who conducted a full review of the record, an interview with the Veteran, and a psychiatric evaluation, and considered the Veteran’s reported stressors of being sprayed in the face with jet fuel and participating in war games, found that he did not meet the diagnostic criteria for a diagnosis of PTSD, to include based on a personal assault. Consequently, the Board finds that the probative evidence of record does not demonstrate a current disability of PTSD at any point pertinent to the appeal period. Furthermore, while the Veteran has a current diagnosis of unspecified depressive disorder as noted by the July 2016 VA examiner, the evidence does not support a finding that such is related to his military service or a service-connected disability. In this regard, the Board observes that the May 2014 VA examiner diagnosed bipolar disorder; however, the Veteran’s VA treatment records are negative for such a diagnosis and the July 2016 VA examiner determined that, based on his reported symptoms and those described in his treatment records, he did not meet the diagnostic criteria for bipolar disorder. In this regard, he denied having any bursts of energy, racing thoughts, pressured speech, or extended periods where he does not sleep but maintains energy. Further, she noted that VA treatment records focus on depressive symptoms without mention of manic symptoms. Consequently, the VA examiner determined that the Veteran’s symptoms are better accounted for, and more consistent with, the currently diagnosed unspecified depressive disorder. She further noted that such diagnosis is consistent with the Veteran’s VA treatment records that reflect diagnoses of various depressive disorder and adjustment disorder. Additionally, the Veteran’s service treatment records are negative for any complaints, findings, or treatment referable to an acquired psychiatric disorder. However, such show that, in March or April 1981, he presented with a stomachache that was noted to be psychosomatic. Nonetheless, at the time of his April 1982 separation examination, he denied currently or previously experiencing frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. Additionally, while the Veteran’s service personnel records reflect multiple reports of disciplinary actions for failure to report to appointed place of duty, wrongful possession and use of marijuana, and violation of an order from a superior commissioned officer, and was discharged under honorable conditions due to apathy and poor effort, there was no indication of the presence of a psychiatric disorder. As a May 2014 VA examiner provided contradictory opinions regarding whether the Veteran’s acquired psychiatric disorder was secondary to his service-connected disabilities and did not address whether such was related to his military service, the Board remanded the claim in July 2016 in order to afford the Veteran a new VA examination. Thereafter, in July 2016, the Veteran underwent another VA examination. As noted previously, the examiner diagnosed unspecified depressive disorder and, after a full review of the record, an interview with the Veteran, and a psychiatric evaluation, opined that such was not related to his military service or a service-connected disability. In this regard, she noted that, while the Veteran’s service treatment records reflected a stomachache characterized as psychosomatic, there were no other notations of psychiatric symptoms in service. Further, while his service personnel records reflect multiple reports of disciplinary actions, there was no mental health history in service. Consequently, the examiner found that the single notation of a stomachache characterized as psychosomatic does not provide sufficient support to conclude that the Veteran was experiencing a psychiatric disorder during service when considered in the context of the Veteran’s other service treatment records and military disciplinary records. Therefore, she concluded that it was less likely than not that the Veteran’s unspecified depressive disorder is the same condition noted in military service as a psychosomatic stomachache. The July 2016 VA examiner further found that there was little support for the service-connected ear disabilities, to include bilateral hearing loss, tinnitus, and/or perforation of the tympanic membrane of the left ear, causing a psychiatric disorder. In this regard, she noted that, during the examination, it was difficult to get the Veteran to focus on the question of his service-connected ear disabilities in and of themselves. He instead perseverated on his assertion that a surgery performed by VA in 2003 led to increased hearing loss and numbness in his face. The examiner also observed that VA treatment records since such time also indicate that the Veteran attributed many of his psychosocial and occupational problems to such treatment. Further, when the examiner asked about his ear conditions, the Veteran only focused on the residual effects of the VA treatment. However, the Board notes that the Veteran is not service-connected for the residuals of such surgery. Consequently, the examiner concluded that there was no evidence that the Veteran’s acquired psychiatric disorder is directly related to his service-connected ear disabilities. She further found that there was insufficient evidence that such disabilities permanently aggravated the Veteran’s unspecified depressive disorder beyond its clinical course. The Board accords great probative weight to the July 2016 VA examiner’s opinion as such considered all the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on, and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. In reaching this decision, the Board has considered the Veteran’s statements in support of his claim. While he is competent to report his in-service experiences, as well as his current psychiatric symptomatology, the Board finds he is not competent to offer an opinion as to the etiology of his acquired psychiatric disorder since he does not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorder, to include whether such is related to his military service or his service-connected ear disabilities, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology his acquired psychiatric disorder, and, consequently, his opinion on such matter is afforded no probative weight. Therefore, based on the foregoing, the Board finds that, at no time during the pendency of the claim does the Veteran have a current disability of PTSD, and the record does not contain a recent diagnosis of such disability prior to the Veteran’s filing of a claim, and an acquired psychiatric disorder, other than PTSD, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by bilateral hearing loss, tinnitus, and/or perforation of the tympanic membrane of the left ear. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany Alston, Associate Counsel