Citation Nr: 20055035 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 19-37 862 DATE: August 19, 2020 ORDER The application to reopen the issue of entitlement to service connection for hearing loss disability is granted. REMANDED Entitlement to service connection for right ear hearing loss disability is remanded. Entitlement to service connection for left ear hearing loss disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for coronary artery disease is remanded. FINDINGS OF FACT 1. In a March 2015 rating decision, the Agency of Original Jurisdiction denied service connection for hearing loss. The Veteran was notified of his appellate rights and expressed disagreement, but did not perfect an appeal to the Board. 2. Evidence received since the March 2015 rating decision was not previously submitted to agency decision-makers and relates to an unestablished fact necessary to substantiate the claim for service connection for hearing loss. CONCLUSIONS OF LAW 1. The March 2015 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for hearing loss is final. 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to March 1975. With regard to the Veteran's depression/anxiety/mood swings/anger and posttraumatic stress disorder claims, the Board notes that the Agency of Original Jurisdiction (AOJ) has made decisions on whether new and material evidence has been received to reopen previously denied claims. However, recently, additional relevant service department records have been associated with the claims file. See deck logs received July 2020. Pursuant to 38 C.F.R. § 3.156(c), the Board finds that due to the newly submitted service records, the issues must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen previously denied claims. Furthermore, the claims are being reconsidered as one claim, recharacterized as entitlement to service connection for an acquired psychiatric disorder. 1. The application to reopen the issue of entitlement to service connection for hearing loss If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Agency of Original Jurisdiction denied the Veteran’s claim of service connection for hearing loss in a March 2015 rating decision, finding that that there is no evidence the Veteran had a current hearing loss disability for VA purposes. The Veteran expressed disagreement with this decision and a statement of the case (SOC) was issued, but he did not perfect an appeal to the Board within 60 days of the SOC being mailed. Therefore, the decision is final. See 38 C.F.R. §§ 19.52, 20.1103. The evidence received since the March 2015 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, an October 2019 VA examination shows the Veteran has bilateral hearing loss for VA purposes. This new evidence addresses the reason for the previous denial and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss disability is remanded. 2. Entitlement to service connection for left ear hearing loss disability is remanded. Upon review of the evidence of record, the Board finds remand is warranted to obtain an addendum opinion. In October 2019 the Veteran attended an VA hearing loss and tinnitus examination. The examiner provided a positive nexus opinion for the Veteran’s left ear hearing loss disability and negative nexus opinion for his right ear hearing loss disability. For both opinions, the examiner relied on whether there was a “significant permanent shift in hearing thresholds beyond test variability from entrance to separation”. However, a review of the Veteran’s service treatment records reveals audiometric testing was not performed during an August 1972 enlistment examination. This suggests the examiner relied on inaccurate information, or the wrong claims file was reviewed. This is further supported by the examiner’s observation that the Veteran’s tinnitus began while on active duty in 1979. There is no indication in the record the Veteran served on active duty in 1979. Therefore, remanded is warranted to obtain on addendum opinion based on accurate information. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is remanded. The Veteran’s representative recently submitted a March 2020 psychological assessment, that includes an opinion that the Veteran has PTSD due to service. However, this opinion relied on an unverified stressor. The private examiner cited a January 2018 affidavit in which the Veteran reported witnessing a plane crash in which a pilot he knew died. The examiner then cited a December 14, 1973 deck log from the USS Oriskany, as corroboration of this stressor. However, the plane crashes described by the Veteran and in the deck log are different, and therefore the Veteran’s stressor remains uncorroborated. The deck log described a plane that crashed nearly 300 yards from the ship, shortly after takeoff, whereas the Veteran described a plane that crashed while attempting to land on the ship and bounced over the mast. Furthermore, the Veteran said the crash he witnessed happened two or three months into his active duty period, which began in February 1973, not nine months into his active duty period. Moreover, the Veteran’s representative provided hundreds of pages of deck logs, which may provide corroborating information, but the overwhelming majority of them are illegible due to the scanning or faxing processes. Therefore, remand is warranted to allow verification of this plane crash stressor. Additionally, the Veteran stated in his affidavit that he witnessed multiple crashes with no casualties, in addition to the crashed discussed above, but more recently he reported to treatment providers witnessing two pilots die on different occasions. See August 13, 2019 VA treatment record. Furthermore, the Veteran discussed other possible stressors in his affidavit. Upon remand, the Veteran will have the opportunity to detail, to the extent possible, his stressors so the Agency of Original Jurisdiction may attempt to verify them. 4. Entitlement to service connection for coronary artery disease is remanded. The Veteran contends service connection for coronary artery disease is due to alleged herbicide agent exposure. Remand is warranted to determine if the Veteran served closed enough to Vietnam to presume herbicide agent exposure. In a January 2018 affidavit, the Veteran stated he “served in the South China Sea, right outside of Vietnam.” In light of a recent change in law, remand is warranted to determine if he “served offshore of the Republic of Vietnam”. See 38 U.S.C. § 1116A(a). Additionally, the Veteran’s representative has presented an alternative theory of entitlement. See July 2020 correspondence. The Veteran’s representative makes a thorough argument that the Veteran is entitled to service connection as a matter of law, due to service in and near Subic Bay Naval Base, Philippines. However, the initial part of this argument relies on language from a VA website, rather than a regulation or statute. Furthermore, VA’s website says one of the requirements is that a veteran was “part of testing or storing Agent Orange during your military service”. See https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/testing-storage-areas/, last visited August 15, 2020. Here, the Veteran’s representative merely contends the Veteran spent time on a base where it is alleged there was storage and leakage of Agent Orange and chemicals used to make it. There is no contention that the Veteran himself stored or tested herbicide agents at Subic Bay. Therefore, the argument relies on a premise that is not found in the record or contended by the representative. Accordingly, the Board need not address whether the representative’s argument as a whole is legally sound. The matters are REMANDED for the following action: 1. Obtain deck logs for the USS Oriskany from February 1973 to March 1975. 2. Attempt to corroborate the Veteran’s in-service stressors, including plane crashes and other deaths the Veteran has reported witnessing. If more details are needed, contact the Veteran to request the information. 3. If unable to corroborate the plane crash stressor addressed in the Veteran’s January 2018 affidavit, and subsequently relied on by March 2020 private evaluator, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury or disease. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left and right ear hearing loss disabilities are at least as likely as not related to an-service injury or disease. 5. Determine whether the USS Oriskany was offshore of the Republic of Vietnam, as defined in 38 U.S.C. § 1116A, while the Veteran was aboard. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon 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.