Citation Nr: 19123736 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-38 610 DATE: March 29, 2019 ORDER New and material evidence having been received, the claim for service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and substance abuse disorder with unspecified anxiety disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for PTSD was previously denied by a February 2013 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the February 2013 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s tinnitus manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. CONCLUSIONS OF LAW 1. The February 2013 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 3. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to May 1991. He also had a period of active duty for training (ACDUTRA) from December 1981 to June 1982. This matter is on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Based on the nature of the Veteran’s psychiatric condition, the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for an acquired psychiatric disorder, to include all of the identified psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2018, a hearing was held before the undersigned. A transcript of the hearing is in the record. New and Material Evidence PTSD In February 2013, the RO denied the Veteran’s claim of service connection for PTSD. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The February 2013 rating decision denied the claim in part based on a finding that the evidence of record did not show a confirmed diagnosis of PTSD and that there was no in-service stressor event. Since the February 2013 decision, the Veteran has submitted lay statements detailing his exposure to in-service stressors and his current symptomology. Additional evidence has been added to the record, including September 2016 and November 2016 VA examinations and lay testimony from the August 2018 Board hearing. This additional evidence was not taken into consideration during the RO’s previous determination. This evidence also relates to the Veteran’s current disability and its etiology, which was the basis for the prior denial. Accordingly, this evidence is new and material to the case at hand. The Board therefore finds that the Veteran’s claim is reopened. Service Connection Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In the present case, the Board finds that the Veteran has tinnitus, which, as an organic disease of the nervous system, is a chronic disease listed in 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 273 (2015). A September 2016 VA examination shows that the Veteran has credibly reported constant bilateral ringing, mostly in the right ear, that is moderately severe. The Veteran is competent to describe and self-diagnose tinnitus, as the manifestations of the condition are readily observable to even a lay person. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The record also establishes that the Veteran has credibly reported that his current disability manifested to a compensable degree within one year of separation from service. During the September 2016 VA examination, the Veteran reported that the onset of his tinnitus began in or around September 1991 and that he had been exposed to acoustic trauma from trucks, SCUD missile explosions, and generators with no ear protection. The Veteran also stated during the August 2018 hearing that the ringing began during Desert Storm. The Veteran’s DD 214 notes that his primary specialty in service was as a vehicle mechanic. Additionally, it indicates that he served in Southwest Asia in support of Operation Desert Shield/Storm from January 1991 to April 1991. As such, his personnel records corroborate his claim of in-service acoustic trauma. The Board finds the Veteran’s lay statements to be credible and therefore assigns a moderate to high degree of probative value to his statements. The Board notes that the September 2016 examiner addressed the date of incurrence; however, the examiner stated that he was unable to render an opinion due to incomplete service treatment records. The examiner stated that noise seldom causes permanent tinnitus without also causing hearing loss, and that the Veteran’s recent audiological results were unreliable and unsuitable for rating purposes. This examination does not qualify as affirmative evidence to the contrary, as the examiner was unable to render a conclusive opinion in support of or against the Veteran’s lay statements. 38 C.F.R. § 3.307(d). The Board finds the evidence is at least in equipoise as to whether the Veteran has tinnitus that first manifested to a compensable degree within a year of separation. Accordingly, service connection for tinnitus is granted. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and substance abuse disorder, is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. The Veteran was provided with a VA examination in September 2016 to determine the etiology of his acquired psychiatric disorder. The examiner stated that it was not possible to differentiate which portion of the Veteran’s occupational and social impairments were caused by each mental disorder. The examiner also discussed the Veteran’s prior history of substance abuse. She stated that delineation was not possible because it would require speculation, as chronic substance dependence can produce or exacerbate symptoms of anxiety, depression, sleep impairment, and mood swings. The examiner also found no evidence for the full criteria for a diagnosis of PTSD due to the multiple other factors confounding diagnosis and stated that evaluation over time and with sobriety could provide clarification. The September 2016 examiner did not provide an opinion on the likelihood of the etiology of the Veteran’s diagnosed conditions; however, the examiner rendered an addendum opinion in November 2016 in which she clarified that she had determined that it was less likely than not that the Veteran’s diagnosed disorders were related to service. The examiner noted the Veteran’s pre-service substance use, antisocial behaviors, and intercurrent stressors. During the August 2018 hearing, the Veteran and his wife provided additional lay testimony describing the symptomology experienced by the Veteran. His wife stated that she turns the television on loudly during holidays such as the Fourth of July and New Year’s Eve due to an incident in which the Veteran heard fireworks and told everyone to get on the floor because they were being shot at. The Veteran also testified that he had been sober for about two years. The evidence submitted since the September and November 2016 examinations provides more detail of the Veteran’s symptomology and corroborates the Veteran’s prior statements. Additionally, the Veteran and his former attorney representative argued at the August 2018 hearing that the VA examination was inadequate. Specifically, they alleged that the examiner did not ask the Veteran any questions about his history and did not complete the objective testing that was reported to have been completed. Given the above, a VA examination should be obtained that reflects consideration of the evidence of record, to include the additional evidence provided after the September 2016 and November 2016 examinations. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2018 to the present. 2. After obtaining any additional records, schedule the Veteran for an appropriate VA examination to address his claim for an acquired psychiatric disorder at a facility other than the Gainesville location. The electronic claims file must be made available to the examiner for review in connection with the examination. Based on the factual evidence of record, the examiner is asked to provide opinions that address the following: (a.) Clarify whether the Veteran has PTSD under DSM criteria. If a PTSD diagnosis is provided, the examiner must opine whether PTSD is at least as likely as not (a 50 percent or greater probability) related to an in-service stressor, to include a fear of hostile military or terrorist activity during his service in Southwest Asia during Operation Desert Shield/Storm. If the examiner does not diagnose PTSD, the examiner is asked to reconcile this conclusion with VA and private treatment records which reflect diagnoses of PTSD. The examiner is asked to consider the record as a whole, to include lay statements provided by the Veteran and his wife regarding the Veteran’s symptoms. (b.) Clarify the diagnoses for all non-PTSD psychiatric conditions. For each of these diagnosed conditions, the examiner is asked whether it is at least as likely as not (a 50 percent or greater probability) that the condition was caused or aggravated by the Veteran’s service, to include his service in Southwest Asia during Operation Desert Shield/Storm. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, Associate Counsel