Citation Nr: 20021201 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-16 939 DATE: March 24, 2020 ORDER New and material evidence having been submitted, a claim for service connection for tinnitus is reopened. New and material evidence having been submitted, a claim for service connection for a psychiatric disability is reopened. New and material evidence has not been received, and the appeal to reopen a claim of service connection for a prostate resection, to include as due herbicide exposure (“prostate condition”), is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a psychiatric disability is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure (“diabetes”), is remanded. FINDINGS OF FACT 1. The claim for service connection for a tinnitus disability was previously denied in an March 2014 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 2. Evidence associated with the claims file subsequent to a final March 2014 rating decision for service connection for tinnitus relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The claim for service connection for a psychiatric disability was previously denied in an March 2014 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 4. Evidence associated with the claims file subsequent to a final March 2014 rating decision for service connection for a psychiatric disability relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 5. The claim for service connection for a prostate disability was previously denied in an March 2014 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 6. Evidence received since the March 2014 rating decision does not relate to an unestablished fact; is cumulative or redundant of the evidence previously of record with regard to the basis for the prior denial, i.e., no relationship between the current prostate condition and service; and does not raise a reasonable possibility of substantiating the claim. 7. The Veteran’s tinnitus is related to noise exposure in service. CONCLUSIONS OF LAW 1. The March 2014 rating decision denying a claim to service connection for tinnitus is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). 2. Evidence received since a final March 2014 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for tinnitus is reopened. 38 U.S.C. §§ 5108, 7105(c) (2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 3. The March 2014 rating decision, which denied the Veteran’s claim of service connection for a psychiatric disability, became final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. § 20.1103 (2018). 4. Evidence received since a final March 2014 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for a psychiatric disability is reopened. 38 U.S.C. §§ 5108, 7105(c) (2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 5. The March 2014 rating decision denying a claim to service connection for a prostate condition is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). 6. Evidence received since the final March 2014 rating decision is not new and material and reopening of the Veteran’s claim for entitlement to service connection for a prostate condition is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 7. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to October 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a December 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. The Veteran seeks to reopen his claim for service connection for a tinnitus disability. The Veteran’s tinnitus disability claim was originally denied in a January 1985 rating decision. The most recent denial was in a March 2014 rating decision due to a lack of nexus, i.e. the evidence failed to show the current disability was related to service. The evidence of record at the time of the March 2014 rating decision included the service treatment records and military personnel records. The Veteran did not timely appeal the tinnitus claim, nor did he submit new and material evidence. Therefore, the March 2014 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final March 2014 rating decision is detailed below. An August 2015 assessment noting a diagnosis of tinnitus; treatment records from for November 2015; an August and November 2015 tinnitus consultation; December 2015 literature on the U.S.S. Albert David; a March 2016 tinnitus VA examination diagnosing the Veteran with tinnitus and an etiology opinion finding the diagnosed disability is not related to service. As the above described evidence includes a diagnosis for tinnitus and contains examination reports addressing the question of nexus to service, evidence submitted since the previous rating decision addresses an unestablished fact related to an unproven element of the Veteran’s claim for service connection for a psychiatric disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both “new,” as it has not been previously considered by the VA, and “material,” as it raises a reasonable possibility of substantiating the Veteran’s service connection claim. Therefore, the claim to reopen is granted. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability to include depression The Veteran seeks to reopen his claim for service connection for a psychiatric disability. The Veteran’s psychiatric disability claim was originally denied in a March 2014 rating decision due to a lack of diagnosis and nexus, i.e. the evidence failed to show the current disability was related to service. The evidence of record at the time of the March 2014 rating decision included the service treatment records and military personnel records. The Veteran did not timely appeal the psychiatric disability claim, nor did he submit new and material evidence. Therefore, the March 2014 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final March 2014 rating decision is detailed below. VA treatment records from July 2014 to May 2017 reflecting treatment for depression; private treatment records reflecting treatment for depression in March 2005; a private July 2015 examination diagnosing the Veteran with recurrent moderate episodes of depression; Crownview treatment records from November 2014 to October 2015; December 2015 literature on the U.S.S. Albert David; a December 2019 private etiology opinion finding the diagnosed depression is related to service. As the above described evidence includes a diagnosis for depression and contains examination reports addressing the question of nexus to service, evidence submitted since the previous rating decision addresses an unestablished fact related to an unproven element of the Veteran’s claim for service connection for a psychiatric disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both “new,” as it has not been previously considered by the VA, and “material,” as it raises a reasonable possibility of substantiating the Veteran’s service connection claim. Therefore, the claim to reopen is granted. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a prostate resection, to include as due herbicide exposure (“prostate condition”) The Veteran seeks to reopen his claim for service connection for a prostate disability. The Veteran’s prostate disability claim was originally denied in a March 2014 rating decision due to a lack of nexus, i.e. the evidence failed to show the current disability was related to service. The evidence of record at the time of the March 2014 rating decision included the service treatment records and military personnel records. The Veteran did not timely appeal the prostate claim, nor did he submit new and material evidence. Therefore, the March 2014 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final March 2014 rating decision is detailed below. A June 2015 treatment visit for a prostate nodule; private treatment records from July and August 2015 noting a diagnosis of benign prostatic hyperplasia (BPH); and December 2015 literature on the U.S.S. Albert David. The Board finds that the evidence received since the March 2014 final rating decision is essentially cumulative to the evidence in the record at the time of the prior denial. The treatment records submitted since the decision do not address the etiology of the Veteran’s prostate condition and further confirms the Veteran has a current disability. Accordingly, evidence submitted since the previous rating decision is not “material,” as it does not relate to an unestablished fact, is cumulative or redundant of evidence previously submitted, and it does not raise a reasonable possibility of substantiating the Veteran’s service connection claim. For these reasons, the Board finds that the evidence received since the March 2014 final rating decision is essentially cumulative to the evidence in the record at the time of the prior denial. Therefore, reopening of the claim is not warranted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The presumptive chronic diseases include organic disease of the nervous system, to include tinnitus associated with acoustic trauma and psychosis. See Fountain v. McDonald, 27 Vet. App. 258 (2016). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2017). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2017); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for tinnitus The Veteran claims service connection for a tinnitus disability, specifically noise exposure during service. For the reasons discussed below, the Board agrees service connection is warranted. Service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for tinnitus. The September 1983 retirement examination reflected normal clinical findings for the ears and there were no noted complaints of tinnitus or ringing in the ears. Post service, in November 1983, the Veteran applied for benefits alleging he had tinnitus. In August and November 2015, private treatment records reflect consultations for tinnitus. Bilateral tinnitus was noted as the diagnosis. A March 2016 VA Audiology examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran reported tinnitus with an onset after he got out of service in 1983. He was diagnosed with sensorineural hearing loss. The audiologist opined the Veteran’s tinnitus is at least likely as not, a symptom associated with his hearing loss, however, it is less likely than not caused by or a result of military noise exposure. The rationale was based on the fact that there was no positive threshold shifts in service, the Veteran’s MOS is rated as a low probability for noise exposure, and the Veteran’s diabetes may be an associated factor. During the December 2019 Board hearing, the Veteran testified to hearing ringing in his ear once out of service. He testified to exposure to loud noises such as, machines, pots, pan, and a blower. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and affords the Veteran reasonable doubt. Service connection is warranted. Although the Veteran reported no tinnitus during the September 1983 separation examination, post-service treatment records, reflect complaints of tinnitus. The Veteran is competent to provide evidence regarding matters that can be perceived by the senses and, in some instances, provide an opinion as to the etiology of such conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that tinnitus is a common malady, the symptoms of which lay persons may identify. In this case, the Veteran provided testimony indicating the tinnitus began after service. He testified to exposure to loud noises such as, machines, pots, pan, and a blower. As the Veteran was on active service for 19 years, significant exposure to loud noise is conceded. Additionally, he filed a claim for tinnitus, November 1, 1983, which was the day after discharge from service. Therefore, the Board accepts the testimony of the Veteran, affirming that his tinnitus began immediately after service. Although, there is a negative VA opinion of record, the Board finds the opinion is inconsistent with the record. The examiner opined the tinnitus is a symptom of hearing loss; however, the record reflects the Veteran complained of tinnitus one day after service. At that time, he had not been diagnosed with hearing loss and was not diagnosed until March 2016. Therefore, it is impossible for his tinnitus to be related to condition that did not occur until decades later. The Veteran has consistently reported an onset of tinnitus in 1983 as evidenced in his November 1983 application for benefits, March 2016 VA examination, and his December 2019 Board testimony. The Board finds the evidence shows that the onset of tinnitus was within one year from the date of service separation; and with respect to continuity of symptomatology, the preponderance of the evidence demonstrates that there is credible lay evidence of symptoms of tinnitus that have been continuous since separation from active service. Given the evidence showing the existence of a current disability that manifested during service or immediately after service, the Board finds that upon resolution of reasonable doubt in favor of the Veteran, the evidence is in relative equipoise and service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability The Veteran contends his psychiatric disability is related to in-service depression complaints. STRs in April 1979 reflect treatment for mild depression due to isolation and close surrounds of the ship for 18 months. The September 1983 retirement examination reflected normal clinical findings for the psychiatric system. A July 2015 private examination report indicated review of the Veteran’s intake and medical records, recounted the Veteran’s history, and recited his complaints. He was diagnosed with recurrent moderate episodes of depression. No etiology opinion was provided. In December 2019, the Veteran submitted a private etiology opinion. A.C., M.D., opined the Veteran’s depression is most likely caused by service. The rationale was based on the fact that the Veteran reported serving in the military for a long period of time, including service on a ship. He also experienced depressed mood. The rationale for the opinion is inadequate as it does not address how the Veteran’s current diagnosis is related to his in-service depression treatment. The Veteran did not receive a VA examination. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. In this case the Veteran has provided competent evidence of a current disability. The July 2015 private examination reflects a depression diagnosis. The STRs reflect treatment for mild depression and the December 2019 private etiology opinion indicates that the disability may be related to service. However, as it relates to a nexus, there is insufficient competent medical evidence on file for the Board to render a decision. As such, the VA’s duty to assist has been triggered and a VA examination is warranted. See McClendon, 20 Vet. App. 79 (2006). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure (“diabetes”) In the December 2019 Board hearing, the Veteran’s Agent argued the new requirements to determine presumptive service connection based on herbicide exposure in Vietnam apply to the Veteran. The Veteran alleges he was aboard a ship in the vicinity of the Republic of Vietnam. The most recent statement of the case addressing the issue of service connection for diabetes, as it relates to Blue Water Navy members and exposure to herbicides, is from November 2016. Since then the law in this area has significantly changed. In Procopio v. Wilkie, 913 F.3d 1371, 1381 (Fed. Cir. 2019) (en banc), the Court of Appeals for Veteran’s Claims (CAVC) overruled earlier precedent and held that veterans of the Vietnam era who served within the 12-nautical-mile limit of Vietnam’s territorial sea are entitled to a presumption of exposure to herbicides such as Agent Orange. Following Procopio, Congress enacted, and the President signed, the Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 (“the Act”)). The Act further clarified “presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam.” Procopio v. Secretary of Veterans Affairs, 943 F.3d 1376, 1378 (Fed. Cir. 2019) (quotes omitted). Edwards v. Wilkie, No. 18-3779, 2020 U.S. App. Vet. Claims 307, at 2 (Vet. App. Feb. 25, 2020). Therefore, the Board finds a remand is necessary for additional development before the Board can consider whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for diabetes. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination to assess the nature and etiology of the Veteran’s psychiatric disability. The examiner shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s current psychiatric disability was incurred in or as a result of his period of active duty service? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. As it relates to diabetes, the RO must determine whether the Veteran was on a ship associated with service in Vietnam and exposure to herbicide agents, during the specified time period and within 12 nautical miles of Vietnam. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.