Citation Nr: 20002006 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-31 564 DATE: January 9, 2020 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. In a final decision issued in July 1998, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for PTSD. 2. Evidence added to the record since the July 1998 prior final decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for entitlement to service connection for PTSD. 3. In a final decision issued in November 2010, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 4. Evidence added to the record since the November 2010 prior final decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of a final September 2016 decision, the criteria for reopening the claim of entitlement of service connection for PTSD have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has not been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1970 to November 1972. The claim for PTSD comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) RO. The claim for bilateral hearing loss comes before the Board on appeal from a November 2010 rating decision issued by the VA RO. In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held via videoconferencing. I. New and Material Evidence Legal Principles and Regulations In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” In determining whether this 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 by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Analysis 1. PTSD Here, in a July 1998 rating decision, the RO denied the Veteran’s claim for service connection for PTSD because the Veteran failed to report for his VA examination and good cause was not shown. The RO determined that without the VA examination it was unable to assess the Veteran’s psychiatric disorder. See July 1998 Rating Decision. The Veteran’s last final decision for his claim for PTSD was in July 1998 as he did not file an appeal to this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record at the time of the last final denial in July 1998, included service treatment records (STRs) and military personnel records. The evidence submitted and obtained since the July 1998 prior final decision includes, VA treatment records from September 2010, and from April 2013 to October 2014; statements in support of the claim; and STRs. The STRs submitted in July 2014 are duplicative and, therefore, are not new evidence. Given such, 38 C.F.R. § 3.156(c) is not for application. Upon review of the aforementioned evidence, the Board finds that the Veteran’s VA treatment records are new and material. This evidence is new because it has never been submitted and it is not redundant of evidence already of record. The evidence is material because it contains a diagnosis of PTSD. Also, the Veteran submitted a statement in support of the claim which contained an in-service stressor, which was attributed to his PTSD. December 2014 Statement in Support of Claim for PTSD. Given such, reopening of the claim is in order, as the evidence is new and material. Shade, 24 Vet. App. 110. 2. Bilateral Hearing Loss The Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim for service connection was received prior to the expiration of the appeal period stemming from the prior rating decisions. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Here, in the November 2010 rating decision, the RO denied the Veteran’s claim for service connection for bilateral hearing loss because his hearing loss could not be linked to service. While the Veteran’s military occupational specialty (MOS) of a builder was found to be consistent with military noise exposure, the RO explained in order to establish acoustic trauma due to service must be established by a medical expert who found a link between the Veteran’s hearing loss and in-service noise exposure. See November 2010 Rating Decision. The RO determined there was no medical records which show the Veteran’s hearing loss was due to his service. See id. The Veteran filed additional medical evidence after the prior final denial along with an NOD filed in April 2015. The RO issued an SOC in June 2015 where the RO denied reopening the Veteran’s claim as the evidence submitted was not new and material to an unestablished fact. The RO established that the new evidence submitted showed continued treatment for hearing loss but failed to provide a link between the hearing loss and his military service. See June 2015 SOC. In denying the claim in the November 2010 rating decision, the RO considered the Veteran’s STRs, VA Audio Examination, and military personnel records. Evidence submitted since the last final denied includes VA treatment records, lay statements from the Veteran’s ex-wife, a lay statement from the Veteran’s mother, and an appellate brief. While the Board notes the Veteran sought treatment for his bilateral hearing loss, there is no etiological opinions of record attributing his bilateral hearing loss to his military service. Further, the Veteran’s submission of lay statements do not etiologically attribute his bilateral hearing loss to his military service. Also, during the August 2019 hearing, the Veteran, by way of his representative, claimed the October 2010 VA examination was inadequate. The assertion that the VA examination was inadequate was based on the fact that the examiner did not specifically question the Veteran regarding his noise exposure and for the examiner’s failure to address the Veteran’s post-service noise exposure. See August 2019 Hearing Transcript, pg. 17. Here, the November 2010 rating decision addresses the Veteran’s in-service noise exposure. Specifically, the RO conceded the Veteran’s military occupational specialty (MOS) caused a high probability of acoustic trauma. See November 2010 Rating Decision. Lastly, the October 2010 VA examination does address the Veteran’s post-service noise exposure. See October 2010 VA Audio Examination. Consequently, there is no evidence of record indicating the Veteran suffers from bilateral hearing loss that is due to his military service. As there are no new contentions or evidence to support the claim, the evidence added to the record is either cumulative, or unrelated to the claim. Therefore, new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. REASONS FOR REMAND 1. PTSD Regrettably, the Board finds a remand is warranted for the discovery of additional evidence. Specifically, the Board finds a search is warranted for military records pertaining to his claimed in-service stressor. The Veteran contends an in-service stressor which has gone unverified. The Veteran contends during service a grenade went off near him during a training at Camp Pendleton. See December 2014 Statement in Support of Claim for PTSD. The Veteran provided additional information as requested in December 2014. See id. A Joint Services Record Research Center search was not completed even though the Veteran responded to the requests for additional information. Given the aforementioned, a remand is required to complete a search to verify the Veteran’s in-service stressor. After obtaining these records, the RO should determine whether the evidence supports the Veteran’s stressor and determine whether the stressors support service-connection for PTSD. The matters are REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), Joint Services Record Research Center (JSRRC), or any other appropriate service department offices, to verify the Veteran’s in-service stressor of the Veteran experiencing a grenade explosion during training at Camp Pendleton around November 1971. If more details are required to conduct such search, the Veteran should be asked to provide the necessary information. The results of such request, whether successful or unsuccessful, should be documented in the claims file, and the Veteran informed of any negative results. 2. After the above is completed, the RO must determine whether the Veteran’s stressor is supported and make a determination on the Veteran’s claim for service connection for PTSD. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.