Citation Nr: 20020439 Decision Date: 03/19/20 Archive Date: 03/19/20 DOCKET NO. 16-02 461 DATE: March 19, 2020 ORDER As new and material evidence has not been received regarding the claim of entitlement to service connection for a psychiatric disorder of any kind, to include a personality disorder, the Veteran’s claim is not reopened, and the appeal is denied. As new and material evidence has been submitted regarding the claim for service connection for a back disability, the Veteran’s claim is reopened. To this extent only, the appeal is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. By a June 2003 Board decision, the Veteran’s claim of service connection for an acquired psychiatric disorder was denied on the basis that the Veteran does not have an acquired psychiatric disorder that is related to his military service. 2. Evidence received since the June 2003 Board decision is cumulative and redundant and does not raise a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder of any kind, to include a personality disorder. 3. By an April 2000 Board decision, the Veteran’s claim for service connection for a back disorder was denied on the basis that the Veteran had not been shown by competent medical evidence to suffer from a chronic back disorder which could be related to his period of service. 4. Evidence received since the April 2000 Board decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a back disorder. CONCLUSIONS OF LAW 1. The June 2003 Board decision denying the Veteran’s claim for service connection for an acquired psychiatric disorder is final. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for a psychiatric disorder of any kind, to include a personality disorder has not been submitted. See 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2019). 3. The April 2000 Board decision denying the Veteran’s claim for service connection for a back disorder is final. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2019). 4. New and material evidence sufficient to reopen the Veteran’s claim of service connection for a back disorder has been submitted. See 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to September 1993. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Additionally, the Veteran has not alleged any deficiency with his January 2019 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. 1. As new and material evidence has not been received regarding the claim of entitlement to service connection for a psychiatric disorder of any kind, to include a personality disorder, the Veteran’s claim is not reopened, and the appeal is denied. The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a psychiatric disorder of any kind, to include a personality disorder. After review of the evidence of record, the Board finds that new and material evidence has not been submitted. The Board notes that the Veteran was last denied service connection for an acquired psychiatric disorder in a June 2003 Board decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (West 2014). 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) (2019). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis for the June 2003 Board decision was that the Veteran did not have an acquired psychiatric disorder that is related to his military service. At the time of this denial, post-service medical records, service treatment records, personnel records, and statements submitted by the Veteran and other acquaintances were considered. The new evidence submitted since this denial consists primarily of statements submitted by the Veteran and other acquaintances, personnel records, Social Security Administration (SSA) records, and post-service medical records. With regard to the Veteran’s personnel records and SSA records, the Board notes that these records do not reflect that the Veteran has a psychiatric disorder of any kind that is related to his military service. Therefore, these records cannot be considered material, in that they do not relate to an unestablished fact necessary to substantiate the claim. With regard to the newly submitted post-service medical records, the Board notes that many of these records are duplicate copies of medical evidence already of record at the time of the June 2003 Board decision. For example, the Veteran has re-submitted private medical records from Dr. Otero from 1998 through 2000 documenting psychological evaluations. As these records are duplicative of previously submitted evidence, these medical records are not deemed to be new and material evidence for the purpose of reopening this claim. With regard to any newly submitted medical records that were not available to the Board at the time of the June 2003 decision, the Board finds these records do not reflect that the Veteran has a psychiatric disorder of any kind that is related to his military service. As such, these newly submitted records cannot be considered material, in that they do not relate to an unestablished fact necessary to substantiate the claim. Thus, the post-service medical records are not deemed to be new and material evidence for the purpose of reopening this claim. With regard to the lay statements and hearing testimony of record, the Board notes that, throughout the course of the current appeal, the Veteran has asserted that he has a psychiatric disorder that began during his active duty service. He has also submitted statements from people attesting to his character prior to service, and a statement from one person he worked with at a prison post service. Prior to the June 2003 Board decision, the Veteran asserted that he developed a psychiatric disorder during his time in service. At a March 2000 hearing, the Veteran testified that he did not have mental health problems prior to service but that his mental health problems began during service, to include feeling suicidal in service. He also submitted statements prior to the June 2003 Board decision from people who knew him prior to service attesting to his character. The Board finds that the lay statements and hearing testimony submitted in conjunction with the current claim to reopen are essentially duplicative of evidence previously submitted or are not relevant to the claim, in that they do not relate a current psychiatric disorder of any kind to service. As such, this evidence cannot be considered new and material evidence for the purpose of reopening this claim. Although the Board is sympathetic to the Veteran’s health difficulties, no new and material evidence has been received sufficient to reopen his claim. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. As new and material evidence has been submitted regarding the claim for service connection for a back disability, the Veteran’s claim is reopened. To this extent only, the appeal is granted. The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a back disorder. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran’s claim for service connection for a back disorder was initially denied in an April 2000 Board decision. This decision became final. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (West 2014). The basis for the April 2000 Board decision was that the Veteran had not been shown by competent medical evidence to suffer from a chronic back disorder which could be related to his period of service. At the time of this denial, post-service medical records, service treatment records, personnel records, and statements submitted by the Veteran and other acquaintances were considered. The new evidence submitted since this denial consists primarily of statements submitted by the Veteran and other acquaintances, personnel records, Social Security Administration (SSA) records, and post-service medical records. With regard to the newly submitted VA medical records, the Veteran was noted in a June 2012 VA examination report as having a musculoskeletal strain of the back. As the newly submitted evidence reflects that the Veteran has a chronic back disorder, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate this claim. As such, this claim is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus and bilateral hearing loss is remanded. In June 2012, the Veteran underwent a VA audiological examination, in which it was determined that it is not likely that his current bilateral hearing loss is caused by or a result of military service. The entrance and separation examinations revealed normal hearing acuity bilaterally with no significant threshold shifts. The examiner noted that insufficient evidence was available to render an opinion as to the etiology of the Veteran’s reported tinnitus without resorting mere speculation. The examiner further noted that the claims file contained no complaints, diagnosis, or treatment for tinnitus during military service. The Board finds that the June 2012 VA opinion is inadequate, as it is essentially based on a lack of in-service evidence of hearing loss and tinnitus. A veteran is not, however, required to show a condition during service, as a post-service diagnosis can still be service connected if it is related to an in-service event, such as noise exposure. As such, an addendum opinion should be obtained in this case. Additionally, upon remand, all outstanding, pertinent treatment records should be associated with the claims file, to particularly include private treatment records dating back to the Veteran’s discharge from service. 2. Entitlement to service connection for a back disability and for a left knee disability is remanded. At the January 2019 hearing, the Veteran testified that he worked at a prison from 1995 to 2001. He testified that he had to undergo routine physical examinations on a regular basis as part of his employment and that he would have discussed his knee and back problems at these examinations. As such, the Board must remand these issues in order to attempt to obtain these records. Moreover, with specific regard to the Veteran’s back disability claim, the Veteran complained of back pain in June 1993. In July 1993, it was noted that he had complained of low back pain for 2 weeks about 1 month prior, which had resolved. In a September 1993 Report of Medical History, the Veteran responded that he did not know whether or not he had recurrent back pain. In a June 2012 VA examination report, the Veteran was noted as having degenerative disease with a large posterior left paracentral disc extrusion at L4-5 and a musculoskeletal strain. The VA examiner did not link the Veteran’s current back disability to service, because it was noted that he went on sick call for upper back pain in 1993, not lower back pain. However, in light of the fact that lower back pain was specifically noted in the July 1993 service treatment record, the Board finds that a new VA opinion should be obtained on the matter. 3. Entitlement to TDIU is remanded. As the issue of entitlement to TDIU, can be impacted by resolution of the Veteran’s service connection claims being remanded, the Board finds that the issue of entitlement to TDIU, must be deferred, as it is inextricably intertwined with the issues being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any outstanding, pertinent private medical records, to include medical records from his time as a prison employee from 1995 to 2001 and any private audiological medical records dating back to September 1993 from an ENT in Texas. Request all identified records. Associate any records received, including negative responses, with the claims file. 2. DO NOT SCHEDULE THE FOLLOWING until the above records have been obtained to the extent possible. 3. Schedule the Veteran for a VA audiological examination. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of his symptoms relating to his claimed tinnitus and bilateral hearing loss, as well as a history of any noise exposure. After reviewing the file, examining the Veteran, and noting his reported history of symptoms and noise exposure, the examiner should render an opinion as to whether the Veteran currently has tinnitus or hearing loss of either ear. If so, an opinion should be provided as to whether it is at least as likely as not that the Veteran’s current tinnitus or hearing loss of either ear began during, or was caused or aggravated by, his service. The examiner should explain why or why not and is advised that an opinion based solely on the fact the conditions were not shown in service or at separation is NOT a sufficient rationale. 4. Schedule the Veteran for a VA examination for his back disability claim. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of his symptoms relating to his back disability. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should render an opinion as to whether it is at least as likely as not that any diagnosed back disability began during, or was caused or aggravated by, his service. The examiner should provide a complete rationale for any opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.