Citation Nr: 21000917 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-15 116 DATE: January 6, 2021 ORDER Whether new and material evidence has been submitted to reopen the claimed for entitlement to service connection for left ear hearing loss is granted. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for tinnitus is granted. Prior to August 20, 2020, entitlement to a rating of 50 percent for service-connected other specified depressive disorder with alcohol use disorder in remission (depressive disorder) is granted. For the entire appeal period, entitlement to a rating in excess of 50 percent for service-connected depressive disorder is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACTS 1. In a December 1993 rating decision, the RO denied service connection for left ear hearing loss and tinnitus. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. Evidence received since the March 1993 rating decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for left ear hearing loss and tinnitus. 3. Throughout the entire of the appeal period, the Veteran's other specified depressive disorder has been manifested by symptoms that are indicative of occupational and social impairment, with reduced reliability and productivity, but not occupational and social impairment in most areas. CONCLUSIONS OF LAW 1. The December 1993 rating decision denying service connection for bilateral left ear hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claims of service connection for left ear hearing loss. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to warrant reopening of the claims of service connection for tinnitus. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 4. The criteria for a disability rating in excess of 50 but no higher is warranted prior to August 20, 2020, and a rating in excess of 50 percent thereafter for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9499-9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1966 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Portland, Oregon. In December 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. These matters were remanded by the Board in April 2018 for additional development. 1. Whether new and material evidence has been submitted to reopen the claimed for entitlement to service connection for left ear hearing loss 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for tinnitus In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156 (c)(1). To establish service connection, a Veteran must show: (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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a March 1993 rating decision, the RO denied service connection for left ear hearing loss and tinnitus. Service connection for left ear hearing loss was denied as the Veteran did not have a current left ear hearing loss disability in the criteria set forth in 38 C.F.R. § 3.385 during active duty. Tinnitus was denied as the evidence showed that tinnitus was first diagnosed and reported by the Veteran to have onset after separation from service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Evidence of record at the time of the March 1993 rating decision includes the Veteran’s service treatment records, National Guard records, and a December 1992 VA audiological examination report. The VA examination report showed right and left ear hearing loss and tinnitus, although left ear hearing loss was not noted on discharge. No etiology opinion was provided. Evidence of record submitted after the March 1993 decision, includes VA treatment records, a December 2016 Board hearing transcript, a November 2014 VA examination report, lay statements of in-service noise exposure, and private treatment records. At the Board hearing, the Veteran testified that he was exposed to loud noise from various weapons used during his duties as a military policeman. Additionally, when asked by the undersigned VLJ, the Veteran reported that his tinnitus did not onset until after separation from service as he did not experience any ringing in the ears after in-service hazardous noise exposure. In other statements of record, the Veteran reported his hearing loss and tinnitus were worsened during National Guard service. The Board finds that new and material evidence has been presented to reopen the claim for entitlement to service connection for left ear hearing loss. The Board notes that the evidence submitted prior to the March 1993 rating decision did not address any additional hearing loss during national guard service. The 2014 VA examination found that as there was no diagnosis during active duty, hearing loss and tinnitus were unrelated to active duty. But the Veteran has now asserted, that National Guard service aggravated his hearing loss. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim, whether there was onset during active duty or active duty for training. See 38 C.F.R. § 3.303 (a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Accordingly, for all of the above reasons, the claims for entitlement to service connection for left ear hearing loss and tinnitus is reopened. 3. Entitlement to a rating in excess of 30 percent prior to August 20, 2020, and in excess of 50 percent thereafter for other specified depressive disorder The Veteran’s current service-connected psychiatric disability noted as unspecified depressive disorder is rated at 30 percent prior to August 20, 2020, and 50 percent thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9499-9435. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126 ; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). A 30 percent rating will be assigned when a psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9435. A 50 percent evaluation will be assigned when a psychiatric disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when a psychiatric disorder causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact his occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. A January 2012 VA examination was conducted. The Veteran reported feelings of worthlessness, hopelessness, chronic dysphoric mood, lack of interest in pleasurable activities. The examiner remarked that the Veteran suffered from moderate social impairment as a result of his depressive disorder. He had lost interest in engaging in social activities. The Veteran was noted to be contemplating leaving his wife of 10 years because he felt distant from her since the loss of his ability to engage in sexual intercourse. He also reported anger control problems that had surfaced since his prostate surgery. The examiner assessed the Veteran with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He was reported to have been married 3 times, and had 2 children from his second wife. He reported he sees his daughter 2-3 times a month, and has not seen his son in 2 years because he lives out of state. The Veteran stated he has two friends that he sees 1-2 times a month. He stated that he blows up at his wife on a weekly basis. Symptoms caused by his psychiatric disability were noted as depressed mood, chronic sleep impairment, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence. A May 2012 private psychiatric treatment report shows that the Veteran reported symptoms of anger, fear, seeing in the suicide zone, relationship issues, alcohol recovery issues, emotions hard to control, and thinking problems. Symptoms were also reported as heart racing, difficulty breathing, panic attacks, stressed, depressed, unhappy, sense of hopelessness, low sense esteem, lack of motivation, difficulty concentration, and difficulty remembering suicidal thoughts 2 to 3 times per month. The Veteran was noted to be living with his wife for the last 12 years. The Veteran reported that he was currently retired from his job as an administrative supervisor. The private evaluator noted that the Veteran was oriented to all four spheres and had an appropriate affect. No hallucinations, thought disorders, delusions, dissociative symptoms or impaired judgment was assessed. The examiner did note concentration impairment and impaired memory. In a June 2014 private medical record, the Veteran was noted to have a history of depression and suicidal ideations. He was evaluated as he drank half a fifth of whiskey after his dog passed away. The examiner noted it did not appear that the Veteran posed an imminent threat to self or others. In a July 2014 private record, the Veteran denied suicidal and homicidal ideations. An October 2014 VA examination shows that the Veteran was diagnosed with an unspecified depressive disorder and adjustment disorder with depressed mood. The examiner assessed the Veteran’s psychiatric disabilities as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he currently lived with his wife of 13 years. He reported having difficulty with anger in his relationships with his wife and has had a more distant relationship with her since his prostate cancer. He also reported having one daughter from a previous relationship who he was estranged from. He described himself as being isolated socially and rarely interacted with friends. The Veteran did report traveling to Idaho to visit a friend. His main activities were interacting with his dogs. The Veteran last worked in 2004 as an office manager and had previous work history of a police officer for 15 years without difficulty. The Veteran was noted not to be currently receiving health treatment or counseling for the mental health condition. Symptoms were assessed as depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner observed that Veteran was casually dressed and well groomed. He spoke freely during the exam. He was quite focused on his dog's death and frequently referred to his dog. He was correctly oriented to person, place, time, and purpose. Thoughts were logical and goal directed. There were no signs of major psychopathology such as hallucinations or delusions. His affect was within normal limits and mood was neutral. He was noted to be tearful when talking about his dog. In December 2014 and September 2015 VA records, there were negative suicide risk screens and positive depression screens. An October 2015 VA medical record, the Veteran reported a down and depressed affect. He denied suicidal and homicidal ideations. In June 2017 and January 29018 VA records, the Veteran had a negative social risk screen and a positive depression screens. An August 2020 VA examination shows that the Veteran was diagnosed with an unspecified depressive disorder. The Veteran reported having periodic depressed mood and poor motivation related to his service connected prostate cancer and said his depression comes and goes. The Veteran also reported having sleep disruption. He also reported no suicidal ideation or intent. The examiner noted that the Veteran had more than one mental disorder but the symptoms of each could not be differentiated as the conditions were inter-related. The examiner assessed the Veteran with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran lived with his wife and reported that his marriage was generally going well although he reported that his marriage was difficult due to his irritability. Prior to COVID-19, he reported he and his wife would go out to eat. He reported that he did not have close friends and indicated that he periodically interacted with acquaintances. The Veteran reported that he was not currently working and last worked in 2005 when he retired. He reported that his last job was for 5 years as an office manager and reported no difficulty completing job duties related to mental health. Prior to that job he was a police officer for 20 years. The Veteran reported he was not currently receiving mental health treatment. Symptoms related to the psychiatric disability were noted as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board find that prior to August 20, 2020, the evidence of record tends to support a 50 percent rating. Here, the evidence shows depressed mood, chronic sleep impairment. Thus, there is disturbance of motivation and mood. The evidence supports that the Veteran has difficulty in establishing and maintaining effective work and social relationships in that he has difficulty in his marriage, and does not engage in significant socializing with friends. The other symptoms as listed in the relevant diagnostic code are not shown by the evidence, the Veteran’s speech was normal, on panic attacks were noted, and thinking and judgment were shown to be normal. There did also not appear to be a flattened affect, or difficulty in understanding complex commands, or impairment of short and long-term memory. Resolving all doubt in favor of the Veteran, however, the Board finds that the Veteran’s symptoms are of similar severity, frequency, and duration. Accordingly, a 50 percent evaluation prior to August 20, 2020 is warranted. The Board also finds, however, that the evidence does not support a rating higher than the assigned 50 percent rating for the entire course of the appeal. Although 1 or 2 records report a history of suicide risk, the remaining evidence of record demonstrates no suicidal ideations. VA and private records also noted impaired impulse control. The Veteran has not reported obsessional rituals panic or depression that affects the ability to function independently, appropriately, or effectively. The treating clinicians noted the Veteran had normal speech and thought processes and was fully oriented. It was also noted that the Veteran did not have neglect of hygiene or appearance. Although the evidence also shows significant difficulty with effective relationships, the Veteran remains married and is in touch with several of his children. Thus, there is not an inability to establish and maintain effective relationships. Accordingly, the Board finds the severity, frequency, and duration of the Veteran’s psychiatric symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. A rating in excess of 50 percent for this service-connected depressive disorder thus is not warranted. REASON FOR REMAND 1. Entitlement to service connection for left ear loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. Remand is required for a new etiological opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The November 2014 VA examiner opined that left ear hearing loss was not due to service as it was not diagnosed during active duty. However, this is not the proper legal standard, as a later diagnosed disability can be service-connected on the basis of an in-service injury or disease. See 38 C.F.R. § 3.3030(d). Furthermore, the Veteran has asserted that his tinnitus had onset during active duty for training (ACDUTRA) and that his left ear hearing loss was aggravated during ACDUTRA. The matters are REMANDED for the following action: Obtain an opinion to determine the etiology of left ear hearing loss. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left ear hearing loss had onset in, or is otherwise related to, active service, to include noise exposure. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that tinnitus had onset in, or is otherwise related to, active service, to include noise exposure. Third, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that left ear hearing loss and tinnitus were had onset in, or were aggravated by, active duty for training. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.