Citation Nr: 20022552 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-57 120 DATE: April 1, 2020 ORDER The claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar, is reopened. New and material evidence has not been presented, and the claim for entitlement to service connection for a skin condition is not reopened. The claim for entitlement to service connection for tinnitus is reopened. REMANDED Entitlement to service connection for bilateral leg disability (to include arthritis), including as secondary to the service-connected lumbar spine, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar, is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A May 2017 rating decision denied the claim for service connection for an acquired psychiatric disability, to include PTSD and bipolar. The Veteran did not timely appeal that decision, and new and material evidence was not submitted within the appeal period. 2. Evidence added to the record since the May 2017 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and bipolar. 3. A May 2017 rating decision declined to reopen the claim for service connection for a skin condition. The Veteran did not timely appeal that decision, and new and material evidence was not submitted within the appeal period. 4. Evidence added to the record since the May 2017 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a skin condition. 5. A September 2013 rating decision continued to deny the claim for service connection for tinnitus. The Veteran did not timely appeal that decision, and new and material evidence was not submitted within the appeal period. 6. Evidence added to the record since the September 2013 rating decision is not cumulative or redundant of the evidence of record at the time of that decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The May 2017 rating decision denying service connection for an acquired psychiatric disability, to include PTSD and bipolar, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim for service connection for an acquired psychiatric disability, to include PTSD and bipolar, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The May 2017 rating decision denying service connection for a skin condition (now claimed as shaving chit), is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence not having been received, the criteria for reopening the claim for service connection for a skin condition have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 5. The September 2013 rating decision denying service connection for tinnitus, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence having been received, the criteria for reopening the claim for service connection tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corp from August 1977 to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and January 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the issues of service connection for lumbar spine and bilateral arthritis of the legs, including as secondary to a back disability, for further development. In July 2019, the RO granted service connection for lumbar spine and degenerative disc disease. Because the Veteran was granted service connection for his back disability, the claim for service connection for lumbar spine is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Requests to Reopen Previously Denied Claims for Service Connection Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. The claim for entitlement to an acquired psychiatric disorder, to include PTSD and bipolar, is reopened. The Veteran’s claim for service connection for an acquired psychiatric disability (claimed as PTSD and bipolar) was initially denied in May 2017. The RO determined that the disabilities neither occurred in nor was caused by service. The RO further noted the Veteran had not provided details of a stressor(s) to support the claim for PTSD. The evidence at the time included the Veteran’s service treatment records and VA medical records. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. In support of his claim to reopen, a July 2019 VA treatment record reflects the Veteran’s assertions that his traumatic experience in the military consisted of fears associated with potential deployment to Iran and exposure to numerous instances of shootings. Furthermore, January 2017 treatment records show treatment for bipolar and hallucinations. As the evidence reflects to the unestablished elements of an in-service stressor and symptoms of a current psychiatric disability, this constitutes new and material evidence presenting a reasonable possibility of substantiating the claim on the merits. Hence, reopening of the claims for service connection for an acquired psychiatric disorder, to include PTSD and bipolar, is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. The claim for entitlement to service connection for a skin condition (now claimed as shaving chit) is not reopened. The Veteran’s claim for service connection for a skin condition was initially denied in June 1979, September 1980, and September 1981. The RO denied the claim due to the Veteran’s failure to report to his scheduled VA examinations and insufficient evidence to evaluate the claims. The RO noted the March 1979 separation examination reflected no reports of a skin condition. The Veteran did not appeal the September 1981 rating decision, nor did he submit relevant evidence within one year of the September 1981 rating decision; therefore, the September 1981 decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. Most recently, the RO declined to reopen the claim in a March 2017 rating decision. The RO again determined that the March 1979 separation examination reflected no reports of a skin condition. The evidence at the time included service treatment records and VA treatment records reflecting complaints for a rash that was most likely due to dry skin. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. In support of his claim to reopen, an August 2019 VA treatment record reflects reports from the Veteran of a rash with onset within the last few decades localized to the neck, beard, and lips. The record also notes a history of persistent psoriasis and nodular swelling and bleeding of the face upon shaving. This evidence, including the Veteran’s lay assertions that he has been experiencing rashes on his face within the last few decades, does not relate to the unestablished element of the prior denials, i.e. evidence of a skin disability at service discharge. Hence, reopening of the claim for service connection for a skin condition is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). 3. The claim for entitlement to service connection for tinnitus is reopened. The Veteran’s claim for service connection for tinnitus was initially denied in August 2007. The RO denied the claim because the Veteran failed to report to his scheduled VA examination and the medical evidence of record failed to show that a disability was clinically diagnosed. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. Most recently, the RO continued to deny the claim in a September 2013 rating decision. The RO again determined that the medical evidence of record failed to show that his claimed tinnitus was diagnosed. The evidence at the time included the Veteran’s service treatment records and an inconclusive September 2013 VA examination that was deemed invalid. The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In support of reopening his claim, a November 2014 VA treatment record reflects the Veteran’s report of chronic ringing in his left ear since service. The Veteran’s lay assertions that he experiences ringing in his left ear since service relates to the unestablished elements of a current disability and nexus. This constitutes new and material evidence presenting a reasonable possibility of substantiating the claims on the merits. Hence, reopening of the claims for service connection for a skin condition is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for bilateral leg disability (to include arthritis), including as secondary to the service-connected lumbar spine is remanded. The Veteran seeks service connection for his bilateral arthritis of the leg, to include as secondary to his service-connected lumbar spine. The Veteran believes that his back disability has either caused or aggravated his bilateral leg disability. As noted above, the March 2019 Board decision remanded the issue of service connection for bilateral arthritis of the legs, as secondary to a back disability, as inextricably intertwined with the claim for service connection for a back disability. As service connection for a back disability has been granted, the Veteran should be afforded an examination to determine the relationship, if any, between the two disabilities. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar, is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD and bipolar. The Veteran has not yet been afforded a VA examination for his acquired psychiatric disorder. The Veteran currently has a history of PTSD, bipolar, impulse control disorder, mood disorder, behavioral problems, substance abuse, and hallucinations. See January 2010 VA treatment record. In a February 2019 VA treatment record, the Veteran reports he was diagnosed by the VA with PTSD and bipolar but was unsure exactly when he was diagnosed. He also asserts that his psychiatric disabilities are caused by time in the military. See January 2017 Treatment Record. As stated above, the Veteran reports his in-service stressors included fears of potential deployment to Iran and exposure to numerous instances of gun fire shootings. The Board notes the Veteran’s personnel records do not reflect time in foreign service. As the evidence reflects symptoms of a current psychiatric disability, lay assertions of an in-service stressor, and an indication from personnel records that the Veteran could have feared potential deployment as he did not have foreign service, a remand is required for an examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder, to include PTSD and bipolar. The RO should also verify the Veteran’s claimed stressors regarding potential deployment to Iran and exposure to shootings. 3. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus and asserts his tinnitus is a result of artillery battery in the military. See February 2019 NOD. Service treatment records are silent for complaints related to tinnitus and the March 1979 separation exam reflects normal hearing. In September 2013, the Veteran underwent a VA audiological examination. The examination yielded invalid and unreliable test results. In November 2014, the Veteran reported chronic ringing in the left ear since service. The Veteran’s DD-214 reflects a military occupational specialty (MOS) as a field artillery battery man, which is indicative of the Veteran’s exposure to rocket launchers and missiles. As the evidence reflects a current disability, exposure to acoustic trauma, and lay assertions as to the continuous onset of symptoms since service, a remand is required for an examination to determine the nature and etiology of the Veteran’s tinnitus. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The matters are REMANDED for the following actions: 1. Forward the Veteran’s statements regarding his in-service stressors between August 1977 to March 1979, as well as copies of his service personnel records and any other relevant evidence to the JSRRC and any other records repositories as the RO deems necessary, in order to verify the Veteran’s potential deployment to Iran and his exposure to shootings. The RO must inform the JSRRC and/or any other appropriate record repository that if there are no records to confirm or deny the Veteran’s depiction of the events, the record repository must provide written documentation to the RO to that effect. If unable to verify that the Veteran was exposed to said stressors during service, the RO must prepare a formal memorandum to this effect, which outlines the steps they took to verify the alleged stressors and responses received, to specifically include responses from JSRRC and other record repositories. The Veteran must be notified of this finding and then be given an opportunity to respond. Include all requests and responses in the claims file. 2. With any necessary assistance from the Veteran, obtain all outstanding VA and private treatment records, if any. All efforts to obtain additional evidence must be documented in the claims file. 3. After development of the above, schedule the Veteran for a VA examination by a qualified clinician to address the nature and etiology of the Veteran’s bilateral leg disability (to include arthritis). The examiner must review the claims file, including a copy of this remand, and indicate review of the file in the examination report. (a) The examiner must determine all leg disabilities (to include arthritis) present during the appeal period. (b) The examiner must indicate (i) whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral leg disability/arthritis is proximately due to his service-connected lumbar strain, or (ii) whether the Veteran’s bilateral leg disability/arthritis is chronically aggravated beyond its natural progression by his service-connected lumbar strain. The U.S. Court of Appeals for Veterans Claims (Court) recently held that “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. See Ward v. Wilkie (16-2157, 17-1204). The Court also recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the clinician must provide separate findings and rationales relating to causation and aggravation. (c) The examiner must also address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral leg disability/ arthritis had its onset during service or is otherwise related to the Veteran’s active service. A complete rationale should be provided for any opinion or conclusion expressed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be helpful to the Board. 4. Schedule the Veteran for a VA examination by a qualified clinician to address the nature and etiology of the Veteran’s acquired psychiatric disability, to include PTSD and bipolar. The examiner must review the claims file, including a copy of this remand, and indicate review of the file in the examination report. The examiner must conduct all indicated studies to rule out diagnoses. The examiner must indicate all current psychiatric disabilities, and any found during the appeal period. For any diagnosed acquired psychiatric disorder, the examiner must provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the disorder is related to service, to include his asserted stressors therein. If a diagnosis for PTSD is deemed appropriate, the examiner must: (i) explain how the diagnostic criteria of the Diagnostic and Statistical Manual for Mental Disorders are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the stressors; (ii) if PTSD is found to be related to an in-service stressor, the examiner must specifically state whether that stressor was related to the Veteran’s service; (iii) if a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain how the diagnostic criteria for PTSD of the Diagnostic and Statistical Manual for Mental Disorders have not been met. In doing so, the examiner must address all of the Veteran’s lay statements regarding the claimed stressors, specifically to include fears of potential deployment to Iran and exposure to gun firing. The examiner must provide a rationale in support of all opinions provided. In providing the opinion(s), the examiner must consider the Veteran’s mental health history as well as the findings documented at the time of the examination. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 5. Schedule the Veteran for a VA examination by a qualified clinician to address the nature and etiology of the Veteran’s tinnitus. The examiner must review the claims file, including a copy of this remand, and indicate review of the file in the examination report. The examiner must address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s tinnitus had its onset during service or is otherwise related to the Veteran’s active service. In providing the opinion, the examiner must consider the Veteran’s contentions, particularly as to onset of tinnitus. The examiner must provide a rationale supported by facts and medical principles for any opinion provided. If an opinion cannot be provided without resorting to speculation, then the examiner should so state and explain why this is so. 6. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.