Citation Nr: 21002134 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-56 941 DATE: January 12, 2021 ORDER The application to reopen the Veteran’s service connection claim for bilateral sensorineural hearing loss is granted. The application to reopen the Veteran’s service connection claim for an acquired psychiatric disorder, diagnosed as other specified trauma and stress-related disorder and substance abuse disorder (also claimed as post-traumatic stress disorder (PTSD), is granted. Service connection for an acquired psychiatric disorder, to include other specified trauma and stress-related disorder and substance abuse disorder (also claimed as post-traumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A December 2012 rating decision denied the Veteran’s service connection claim for bilateral hearing loss. Although the Veteran was notified of the decision, he did not appeal, and neither the Veteran nor his representative filed a motion for reconsideration. 2. A May 2015 rating decision denied the Veteran’s request to reopen his service connection claim for bilateral hearing loss. Although the Veteran was notified of the decision, he did not appeal, and neither the Veteran nor his representative filed a motion for reconsideration. 3. The evidence submitted by the Veteran since the May 2015 rating decision in support of reopening his service connection claim for bilateral hearing loss relates to a previously unestablished fact necessary to substantiate the claim. 4. A May 2015 rating decision denied the Veteran’s service connection claim for an acquired psychiatric disability. Although the Veteran was notified of the decision, he did not appeal, and neither the Veteran nor his representative filed a motion for reconsideration. 5. The evidence submitted by the Veteran since the May 2015 rating decision in support of reopening his service connection claim for an acquired psychiatric disability relates to a previously unestablished fact necessary to substantiate the claim. 6. The Veteran has a current diagnosis of an acquired psychiatric disability, to include other specified trauma and stress-related disorder and substance abuse disorder, and the competent evidence of record is in relative equipoise regarding whether such disability is related to his active military service. CONCLUSIONS OF LAW 1. The December 2012 and May 2015 rating decisions are final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309, 3.385. 3. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disability has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309, 4.125, 4.130. 4. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, diagnosed as other specified trauma and stress-related disorder and substance abuse disorder, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from April 1971 to April 1973, including service in Vietnam and in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2016 by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran withdrew his initial hearing request in November 2020. See 38 C.F.R. § 20.704(e) (2020). The Veteran has applied for service connection for PTSD; however, as the evidence of record demonstrates the presence of more than one mental disorder, the Board has expanded the issue on appeal to include consideration of whether service connection may be awarded for any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (2016). See 38 U.S.C. § 7107(b) (2020). New and Material Evidence Rating decisions from which an appeal is not perfected become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 C.F.R. § 20.200. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the AOJ has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and which is 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim requires consideration of whether the newly submitted evidence could reasonably substantiate any previously unestablished element of the claim were it to be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). However, finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected. See Bingham v. Nicholson, 421 F.3d 1346, 1348-50 (2005). Accordingly, a new theory of causation for a disease that was the subject of a previously denied claim cannot be the basis of a new claim absent a presentation of new and material evidence or of clear and unmistakable error. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); 38 U.S.C. §§ 7103(a), 7104(a), (b), 7111(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The application to reopen the Veteran’s service connection claim for bilateral hearing loss is denied. In this case, the Veteran contends that he has submitted new and material evidence sufficient to warrant reopening of his service connection claim for bilateral hearing loss. The Veteran’s service connection claim for bilateral hearing loss was initially denied in a December 2012 rating decision on the grounds that, although VA concedes the Veteran’s in-service exposure to acoustic trauma, the record contains no evidence that the Veteran currently suffers from a diagnosis of hearing loss as defined by VA regulations. Although the Veteran was notified of the December 2012 rating decision denying his claim, he did not appeal the decision, nor did the Veteran or his representative file a motion for reconsideration. Accordingly, the December 2012 rating decision became final in December 2013. See 38 C.F.R. § 20.1103, 20.200 (2020). In January 2015, the Veteran filed a subsequent service connection claim for bilateral hearing loss and was afforded a second VA examination in April 2015, which again found that the Veteran does not currently suffer from a diagnosis of hearing loss as defined by VA regulations. As the April 2015 VA examination report also did not render a diagnosis of hearing loss for VA purposes, the Veteran’s request to reopen his service connection claim for bilateral hearing loss was denied in a May 2015 rating decision on the grounds that the April 2015 VA examination did not constitute new and material evidence or relate to the previously unestablished element of a current diagnosis necessary to substantiate the Veteran’s bilateral hearing loss claim. See 38 C.F.R. § 3.156(a). Although the Veteran was notified of the April 2015 rating decision denying his claim, he did not appeal the decision, nor did the Veteran or his representative file a motion for reconsideration. Accordingly, the April 2015 rating decision became final in April 2016. See 38 C.F.R. § 20.1103, 20.200. In December 2020, the Veteran’s attorney submitted a statement contending that the Veteran’s hearing loss claim warrants reopening on the grounds that his bilateral hearing loss has worsened since his last VA examination in April 2015, and that he now has to wear hearing aids. The Board finds that the Veteran’s December 2020 contentions constitute new and material evidence sufficient to reopen the claim. Specifically, the Veteran has asserted that his hearing loss has worsened and supported this assertion by indicated he now uses hearing aids. Prior to the April 2015 rating decision, he was noted to be a candidate for hearing aids but the record did not reflect that he had been issued hearing aids by any VA or private provider. Accordingly, the Board finds that because the lay report of using hearing aids can be reasonably construed to substantiate the previously unestablished but required elements of a current disability, the Veteran’s request to reopen his claim for hearing loss is granted. See Shade, 24 Vet. App. at 121. 2. The application to reopen the Veteran’s claim for service connection for an acquired psychiatric disorder, to include other specified trauma and stress-related disorder and substance abuse disorder (also claimed as post-traumatic stress disorder (PTSD), is granted. The Veteran contends that he has submitted new and material evidence sufficient to warrant reopening of his service connection claim for an acquired psychiatric disorder, and for the reasons set forth below, the Board agrees. The Veteran’s service connection claim for an acquired psychiatric disorder, to include other specified trauma and stress-related disorder and substance abuse disorder (also claimed as post-traumatic stress disorder (PTSD), was previously denied in a May 2015 rating decision on the grounds that the record contained no evidence that the Veteran has a current PTSD diagnosis. The Board notes that a December 2014 VA examination report noted a current diagnosis of other specified trauma and stress-related disorder and substance abuse disorder, and that, at the time of the May 2015 rating decision, the record did not contain a competent medical opinion regarding a nexus between the Veteran’s current psychiatric diagnosis and his active military service. Although the Veteran was notified of the May 2015 rating decision denying his claim, he did not appeal the decision, nor did the Veteran or his representative file a motion for reconsideration. However, the Veteran submitted additional VA treatment records reflecting mental health treatment. The claim was reconsidered in accordance with 38 C.F.R. § 3.156(b) in an August 2015 rating decision. The Veteran was notified of this decision and did not appeal. Accordingly, the May and August 2015 rating decision became final. See 38 C.F.R. § 20.1103, 20.200 (2020). Subsequently, the Veteran filed a service connection claim for his acquired psychiatric disability, and in September 2016, a new VA psychiatric examination report was associated with the Veteran’s claims file and provided a positive nexus opinion linking the Veteran’s current psychiatric condition with his active military service. The Board finds that the September 2016 VA psychiatric examination report constitutes the first competent evidence of record relating to any nexus or connection between the Veteran’s current psychiatric condition and his active military service. Accordingly, the Board finds that both the September 2016 VA psychiatric examination report constitutes new evidence, as neither it nor any other nexus opinion had been submitted into the record prior to the May 2015 rating decision. In addition, the Board finds that the September 2016 VA psychiatric examination report also constitutes material evidence as it relates to the previously unestablished but required element of a nexus between the Veteran’s acquired psychiatric disability and his in-service psychiatric stressors. See 38 C.F.R. §§ 3.156(a). The Board also finds that the evidence of record contains no evidence suggesting that the report is inherently false or untrue, and thus its credibility may be appropriately presumed. See Justus, 3 Vet. App. at 513. Accordingly, the Board finds that because the September 2016 VA psychiatric examination report can be reasonably construed to substantiate the previously unestablished but required elements of a nexus between the Veteran’s acquired psychiatric disability and his in-service psychiatric stressors, the Veteran’s request to reopen his claim for an acquired psychiatric disability is granted. See Shade, 24 Vet. App. at 121. Service Connection Service connection for an acquired psychiatric disorder, to include other specified trauma and stress-related disorder and substance abuse disorder (also claimed as post-traumatic stress disorder (PTSD), is granted. The Veteran contends that his current acquired psychiatric disability, diagnosed as other specified trauma and stress-related disorder and substance abuse disorder, and claimed as post-traumatic stress disorder (PTSD), warrants service connection on the grounds it is related to his multiple in-service stressors. After careful review, and for the reasons set forth below, the Board agrees. Service connection may be granted for any disease diagnosed after discharge, where the evidence of record, including that pertinent to service, establishes that a disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail, see Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), and in order to deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). All applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, must establish the existence of a psychiatric diagnosis made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). See 38 C.F.R. § 4.125(a); 79 Fed. Reg. 45099 (Aug. 4, 2014); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020). Because jurisdiction over the present appeal was conferred to the Board in November 2017, the DSM-5 applies to the present case. After careful review of the evidence of record, the Board finds that the Veteran has submitted competent and credible medical evidence of an adequate diagnosis of an acquired psychiatric disability, to include other specified trauma and stress-related disorder and substance abuse disorder, and that the evidence of record is in relative equipoise as to whether his acquired psychiatric disability is related to his active military service. See 38 C.F.R. §§ 4.125(a), 4.130; 79 Fed. Reg. 45099 (Aug. 4, 2014); see also Martinez-Bodon, 32 Vet. App. at 401. In October 2016, the Veteran was afforded a VA psychiatric examination which culminated in a report (the October 2016 VA Report) diagnosing him with other specified trauma and stress-related disorder and substance abuse disorder manifested by the following symptoms: depressed mood; anxiety; nightmares; chronic sleep impairment; irritability; heavy alcohol use; anger with others on a regular basis; and disturbances of motivation and mood. The October 2016 VA Report further indicates that the Veteran’s psychiatric condition results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and inhibit the ability to perform occupational tasks only during periods of significant stress. In addition, the October 2016 VA Report concludes that, based upon a review of the Veteran’s claims file and medical treatment records and an in-person assessment of his psychiatric condition, the Veteran’s current psychiatric condition is more likely than not directly related to experiences that occurred during his active military service, to include the Veteran’s report of an in-service stressor during his military service involving his witnessing of a fellow soldier and friend being hit by a truck in Vietnam. As grounds, the October 2016 VA Report further notes that during his examination interview, the Veteran reported psychiatric symptoms consistent with anxiety resulting from trauma and therefore concludes that the in-service stressor described by the Veteran supports a diagnosis of a trauma and stress-related disorder, including PTSD, and is related to the Veteran’s fear of hostile military or terrorist activity. Regarding the Veteran’s diagnosis of alcohol dependence, the October 2016 VA Report notes as follows: (1) the Veteran reports drinking alcohol “all the time, every day,” and is unable to quantify an amount; (2) the Veteran reported to the VA examiner: “I’ve been an alcoholic since I left Vietnam;” (3) the Veteran reported to the VA examiner that he had received treatment “‘two or three times’ in the past couple of years for drinking too much alcohol;” (4) the record contains “insufficient evidence” to determine whether the Veteran’s alcohol dependence is a direct result of his in-service stressor; (5) the Veteran’s alcohol use “at the very least aggravates his mental health symptoms;” (6) it is not possible to differentiate which portion of the Veteran’s occupational and social impairments are caused by each mental disorder because doing so would require speculation; (7) the Veteran’s report and documented history indicate a likelihood that his alcohol use has been a significant problem for his functioning in all domains; and (8) although the Veteran appears to drink alcohol “at least in part to deal with his anxiety, he seems to have a long history of alcohol dependence that goes beyond what one might expect as a coping mechanism for the level of anxiety suffered.” The Board finds the diagnosis rendered by the October 2016 VA Report to be both competent and credible as it was issued by a licensed doctorate-level psychologist possessing the necessary education, training, and expertise to issue an initial psychiatric diagnosis. See 38 C.F.R. § 3.159(a)(1). In addition, in the absence of credible evidence to the contrary, the Board presumes that the Veteran’s psychiatric diagnosis was made in accordance with applicable DSM-5 criteria. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997); 38 C.F.R. § 4.125. Accordingly, the Board finds that the first element of the Veteran’s claim, a current psychiatric diagnosis, has been established. See 38 C.F.R. § 3.303(d). Turning to the establishment of an in-service incident, the Veteran has identified the following in-service incidents as contributing to his current psychiatric symptoms: (1) while in Vietnam from November 1970 to May 1971, the Veteran reports that he witnesses the death of “many soldiers,” and that he “could not sleep at night worrying about dying and wondering” whether he would be able to return “home alive;” (2) the Veteran further reports that many of his friends “died and never got to go home;” (3) the Veteran further reports that while returning from a convoy mission, a water truck ran over his friend who was right in front of him, and when the Veteran ran to get help, “they took him away, and I never heard about him again; I do not know if he died or went home.” Significantly, as the diagnosis is not PTSD, the inservice incident does not need to be corroborated. The Board finds that the Veteran is competent to describe such incidents as occurring during service, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and that his lay statements are credible, as they have been consistent throughout the record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, in light of the Veteran’s competent and credible testimony, and resolving all reasonable doubt in the Veteran’s favor, the Board finds the evidence of record to be in relative equipoise on this issue. Finally, regarding the third element of a link between the Veteran’s current psychiatric symptoms and his active military service, the Board finds that the positive nexus opinion contained in the October 2016 VA Report carries significant probative weight as it was authored by a licensed psychologist who possesses the necessary education, training, and expertise to provide the medical opinion, was based upon an in-person examination of the Veteran, as well as a review of the Veteran’s claims file, including his service treatment records, private treatment records, and VA treatment records, and contains a well-supported rationale based upon sufficient facts and data from the evidence of record. See 38 C.F.R. § 3.159(a)(2); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the Board further finds it appropriate to attribute all disability symptomatology and functional impairment to the Veteran’s trauma and stress-related disorder, as the October 2016 VA Report expressly found it impossible to determine which portion of the Veteran’s psychiatric impairment is caused by each mental disorder without resorting to mere speculation. Thus, as the veteran has been diagnosed with multiple mental health disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Accordingly, the Board finds the evidence of record to be in relative equipoise regarding all three elements of the Veteran’s service connection claim; thus, the application of the benefit of the doubt doctrine is warranted in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for an acquired psychiatric disability, diagnosed as other specified trauma and stress-related disorder and substance abuse disorder, also claimed as post-traumatic stress disorder (PTSD), is warranted in this case. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993). REASONS FOR REMAND 1. Entitlement to service connection for hearing loss As noted above the Veteran seeks service connection for hearing loss. He has asserted that the condition has worsened and that he now wears hearing aids. As the last examination was in 2015 and the evidence suggests the condition has worsened in severity, a new examination should be obtained to determine whether the Veteran has hearing loss in accordance with 38 C.F.R. § 3.385. 2. Entitlement to service connection for gout, to include as secondary to the Veteran’s service-connected acquired psychiatric disability, is remanded. 3. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran’s service-connected acquired psychiatric disability, is remanded. Unfortunately, the Veteran’s service connection claims for gout and sleep apnea must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The Veteran contends that his current gout and sleep apnea are related to his active military service, to include as a result of the coping mechanism of alcohol dependence he developed as a result of his service-connected acquired psychiatric disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board further notes that the Veteran’s VA treatment records reflect that he has been prescribed prescription medication for gout, as well as treatment with a continuous positive airway pressure (CPAP) device for sleep apnea. However, the Board cannot make a fully informed decision on the issue of service connection for the Veteran’s gout or sleep apnea because no VA examiner has opined as to the nature and etiology of such conditions and whether they are causally related to the Veteran’s active military service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, a VA examination is necessary to determine whether the Veteran’s gout and sleep apnea are related to his active military service and thus entitled to service connection on any basis, to include as secondary to his service-connected acquired psychiatric disability. See McLendon, 20 Vet. App. at 81. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record 2. Schedule the Veteran for a VA examination to address the nature and etiology of his hearing loss. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report. The claims file must be made available for review to the examiner. The examiner must address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss disorder began in (or was aggravated by) his service? The examiner should specifically comment on the Veteran’s report of exposure to noise. A complete rationale for all opinions is required. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed sleep apnea. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to a) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s sleep apnea is due to or otherwise causally or etiologically related to his military service. b) whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current sleep apnea was caused or aggravated by the Veteran’s service-connected acquired psychiatric disability, to include his alcohol dependence identified as a coping mechanism for such disability. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 4. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s claimed gout. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: (a) Whether the Veteran has a current diagnosis of gout; (b) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s gout has been caused or aggravated by the Veteran’s active military service, (c) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s gout is causally related to or aggravated by the Veteran’s service-connected acquired psychiatric disability, to include his alcohol dependence identified as a coping mechanism for such disability. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.