Citation Nr: 21002197 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-22 794 DATE: January 13, 2021 ORDER The application to reopen the previously denied claim for entitlement to service connection for hearing loss is granted. The application to reopen the previously denied claim for entitlement to service connection for tinnitus is granted. The application to reopen the previously denied claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for major depressive disorder (MDD) is granted. Entitlement to service connection for migraine headaches is granted.   REMANDED Entitlement to service connection for arthritis of the upper extremities and left side of body is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea is remanded. Entitlement to service connection for a disability of the brain, to include traumatic brain injury (TBI) and organic brain syndrome not otherwise specified (NOS), is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 30 percent for inguinal hernia is remanded. Entitlement to a total disability individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance of another person or on account of being housebound is remanded. FINDINGS OF FACT 1. In an unappealed February 2014 rating decision, the RO denied the reopening of claims for service connection for bilateral hearing loss and tinnitus. 2. The evidence submitted since the February 2014 rating decision relates to unsubstantiated facts and raises the reasonable possibility that the Veteran will prevail on his claims for entitlement to service connection for bilateral hearing loss and tinnitus. 3. In an unappealed March 2013 rating decision, the RO denied the reopening of the claim for service connection for PTSD. 4. The evidence submitted since the March 2013 rating decision relates to unsubstantiated facts and raises the reasonable possibility that the Veteran will prevail on his claim for entitlement to service connection for an acquired psychiatric disorder. 5. Affording the Veteran, the benefit of the doubt his bilateral hearing had its onset in service. 6. The Veteran’s tinnitus is as likely as not related to service or service-connected bilateral hearing loss. 7. Affording the Veteran the benefit of the doubt, his diagnosed MDD is etiologically related to his service. 8. The Veteran’s migraine headaches are proximately due to, or aggravated by, his now service connected MDD. CONCLUSIONS OF LAW 1. The February 2014 rating decision denying reopening the claims of entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the February 2014 rating decision denying reopening the claim of entitlement to service connection for bilateral hearing and tinnitus; the claim is reopened. 38 U.S.C. § 501; 38 C.F.R. § 3.156. 3. The March 2013 rating decision denying reopening of the claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received since the March 2013 rating decision denying reopening the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD; the claim is reopened. 38 U.S.C. § 501; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 6. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for entitlement to service connection for MDD are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to November 1976 and from September 1977 to January 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a Decision Review Officer (DRO) hearing in a July 2015 statement and such hearing was scheduled to take place in December 2015, in an October 2015 written statement the Veteran withdrew his hearing request. Similarly, although the Veteran requested a Board hearing via videoconference in his July 2013 VA Form 9 and such hearing was scheduled to take place in December 2016, in a November 2016 written statement the Veteran withdrew his hearing request. As such, the hearing requests are considered withdrawn and the Board may proceed with the appeal In August 2020, the Veteran submitted a signed VA 20-0996 Form requesting Higher Level Review. The Veteran did not indicate a specific decision with which he disagreed; therefore, the Board considers this to be a failed opt-in. In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). To that end, the Veteran originally filed a claim for TBI, but, the claims file is currently negative for a diagnosis of the condition. However, the record does show a diagnosis for organic brain syndrome, NOS. As a result, the Board, per Clemons, has expanded the Veteran’s claim to include this diagnosis. Likewise, the Veteran’s claim for an acquired psychiatric disorder has encompassed varying disabilities as reflected by the title page of this decision. However, in light of an August 2018 brief, and adjoining medical reports asserting entitlement to service connection solely on the basis of diagnosed MDD, the Board has expanded and recharacterized the claim as one for an acquired psychiatric disorder, to include MDD. Finally, the Veteran seeks service connection for sleep apnea. Currently, the claims file appears to be negative for diagnosis of the condition, but positive for evidence of sleep impairment. In order to more accurately reflect the nature of the Veteran’s disability, the Board has expanded the claim, per Clemons, to entitlement to service connection for a sleep disorder, to include sleep apnea. These changes are reflected on the title page and provide the most favorable review of the Veteran’s claim in keeping with the holding in Clemons. Reopening Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material.” If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran's claim considering all the evidence both new and old. Barnett v. Brown, 83 F.3d 1380, 1383(Fed. Cir. 1996). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366(Fed. Cir. 2001). 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. Justus v. Principi, 3 Vet. App. 510, 51 (1992). Additionally, 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. See Shade v. Shinseki, 24 Vet. App. 110, 117(2010). 1. Whether new and material evidence was received to reopen a previously denied claim for service connection for hearing loss. 2. Whether new and material evidence was received to reopen a previously denied claim for service connection for tinnitus. 3. Whether new and material evidence was received to reopen a previously denied claim for service connection for an acquired psychiatric disorders. The claims for entitlement to service connection for an acquired psychiatric disabilities was most recently denied in March 2013 as the record lack evidence of nexus. The Veteran did not submit a timely NOD and new and material evidence was not received within a year of this denial. As a result, it became final. The Veteran’s claims for bilateral hearing loss and tinnitus were denied in a May 2009 rating decision. The denial was predicated on the record lacking new and material evidence of nexus. The Veteran did not submit timely notice of disagreement (NOD). There was also no new and material evidence received within a year of the decision. To that end, in August 2011, the Veteran filed claims for service connection for tinnitus and hearing loss. The RO continued the previous denials of both claims in a May 2013 decision. The Veteran requested reconsideration of the denials in June 2013 correspondence. As a result, the matters were readjudicated and again denied in February 2014. The Veteran did not appeal this decision. Rather, in correspondence received in October and December 2014, the Veteran filed claims for service connection for both issues in an October 2014 VA 27-0820 and December 2014 VA 21-526EZ. That said, since the March 2013 rating decision, the Veteran’s representative submitted a private opinion correlating his psychiatric disabilities to service. Since the February 2014 rating decision, the Veteran submitted statements from friends and family corroborating symptomatology since service. These pieces of evidence are new, and discussed below, they are material, as they form the basis for the Veteran’s grants of service connection. New and material evidence having been received; the claims are reopened. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043(Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Hearing loss and tinnitus are chronic diseases under 38 C.F.R. § 3.309 (e) with presumptive periods of one year. Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310 (a). To establish service connection on a secondary basis, three elements must be met: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. Combined VA examination and VA treatment records shows a diagnosis of bilateral sensorineural hearing loss as well as audiologic testing meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385. Element (1) of Shedden is met. Service treatment records (STR) do not reflect treatment or diagnosis of hearing loss. However, the Veteran attributes his current hearing loss to in-service exposure to noise from working in the motor pool which had loud machines and engines. He also reports working in communications with loud radio pitches. See July 2013 correspondence. The Veteran’s DD-214 documents a military occupational specialty (MOS) of multichannel communications operator and his service personnel records document work as a communications mechanical equipment Operator. The Veteran’s MOS is considered to have a moderate probability of hazardous noise exposure. Moreover, his report of exposure to noise is deemed competent and credible. Granting him the benefit of the doubt, the Veteran’s reports of in-service noise exposure are credible and sufficient to satisfy element (2) of Shedden. Regarding Shedden element (3), while the record does not reflect treatment or diagnosis of hearing loss for VA purposes in service, the lay evidence supports the Veteran’s claim of experiencing hearing loss since service. He essentially states that his symptoms began in service and have progressively worsened over time. The Veteran is competent to report a change in his hearing acuity and there is nothing in the record that causes the Board to question the veracity of his statements. To that end, he has submitted credible reports from his family members confirming his reports of hearing loss immediately post service. Taken together with the circumstances of the Veteran’s service and the aforementioned lay statements, and resolving all doubt in his favor, the totality of the evidence supports the finding that the onset of his current hearing loss disability occurred during service, and that the symptoms of his hearing loss have progressed to this time. He is entitled to service connection for bilateral hearing loss. With respect to tinnitus, the Veteran reports ringing in the ears continuously since service. The Board also notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural hearing loss. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; The MERCK Manual, Section 7, Ch. 85, Inner Ear. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of tinnitus, the provision from the MERCK manual, and credible lay evidence, the Board finds that service connection for tinnitus is warranted. Consideration is given to a May 2013 opinion that hearing loss and tinnitus are not related to service. The opinion fails to address the lay history presented by the Veteran, and his family, of longstanding hearing problems and ringing in the ears. The opinion also does not address his repeat diagnosis of sensorineural hearing loss. Such limits the overall probative value of the opinion. The opinion is therefore outweighed by the other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 6. Entitlement to service connection for an acquired psychiatric disorder. 7. Entitlement to service connection for headaches. The Veteran seeks service connection for an acquired psychiatric disorder that he believes manifested in service. He alternately relates his MDD to his service connected inguinal disability. He asserts that his headache condition is either caused or aggravated by his acquired psychiatric disorder. Following consideration of the record, entitlement to service connection is warranted for both conditions. As to the acquired psychiatric disorder, current diagnosis is established by way of an August 2017 disability benefits questionnaire (DBQ) completed by a Dr. H. H.-G., Ph.D., wherein the diagnosis of MDD was confirmed. Element (1) of Shedden and Wallin are met. As to service treatment records, they are negative for a diagnosed psychiatric disability. However, records prepared shortly after service separation reflect the Veteran reporting depression since service. The Veteran has also submitted correspondence from family members which support a marked negative change in his personality between service entrance and separation. This combined evidence is sufficient to meet the criteria for element (2) of Shedden. Moreover, the Veteran is service-connected for inguinal hernia, therefore the (2) element of Wallin is met. What remains is a nexus. In August 2017, Dr. H.-G., opined that the Veteran’s MDD at least as likely as not began in-service and has remained present and uninterrupted since service. Dr. H.-G. also opined that the Veteran’s MDD was aggravated by his service-connected hernia. These opinions were predicated, on in-person interview, review of the record, and consideration of current medical literature. There is no opinion, which addresses the specific contentions raised by Dr. H.-G. therefore, the Board considers it the most probative evidence of record. Element (3) of Shedden and Wallin are met. As the three element of service connection are met, the claim for entitlement to service connection for MDD is granted. The Board considers this to be a full grant of the benefit sought on appeal as the Veteran’s representative requested the grant of service-connection for MDD and H.-G. indicated MDD encapsulated his diagnosis. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). As to the claimed headaches, Dr. S. confirmed a diagnosis of migraine headaches. The Veteran is also now service connected for MDD. Elements (1) and (2) of Wallin are met. What remains is nexus. Dr. S. opined that the Veteran’s headaches were at least as likely as not due to his MDD. This opinion was predicated on examination as well as current medical literature which showed that mental disorders can both cause or aggravate headaches because pain and mood are regulated by the same part of the brain. The Board finds the opinion well rationalized, and there is no opinion to the contrary. Element (3) of Shedden is met. As the three Wallin elements have been satisfied, entitlement to service connection is granted. REASONS FOR REMAND 8. Entitlement to service connection for arthritis of the upper extremities and left side of body. 9. Entitlement to service connection for sleep apnea. 10. Entitlement to service connection for a disability of the brain, to include TBI and organic brain syndrome, NOS. The Veteran generally asserts that he suffers from arthritis of the upper extremities and left side of the body which is etiologically related to his service. Treatment records shortly after separation document repeat reports of upper extremity weakness and reports of pain. Although current treatment records do not reflect arthritis specifically associated with the left upper extremity the Veteran is competent to report pain and weakness since service. He has not been afforded a VA examination. On remand, VA examination and opinion should be obtained to address the nature and etiology of his claimed condition and to ascertain whether it is a symptom of a separate disability. The Veteran reports suffering from a sleep disorder, The record is unclear whether the Veteran has been diagnosed with sleep apnea, however, treatment records shortly after service reflect reports of sleep impairment throughout service. Additionally, lay statements, received shortly after service reflect the Veteran suffered from impaired sleep. The Veteran has yet to be afforded a VA examination, on remand, examination and an etiological opinion must be obtained. In addition, an opinion as to the relationship between the Veteran’s claimed sleep disorder and his now service-connected MMD, which per Dr. S. has symptoms of chronic sleep impairment, should also be obtained. The Veteran seeks service connection for TBI. Dr. S.’s DBQ indicated that he had not been diagnosed with a TBI. However, VA treatment records appear to note a current diagnosis of organic brain syndrome. Treatment records document this diagnosis at least as early as 1997, as well as a diagnosis of cerebral dysfunction and brain damage shortly after separation in 1982. The claims file is negative for a VA examination addressing the nature and etiology of this condition. A remand is warranted. Moreover, as the Veteran is now service-connected for migraine headaches and MDD, with noted cognitive impairment symptomatology, and opinion as to secondary service connection should also be obtained. 11. Entitlement to service connection for diabetes. 12. Entitlement to service connection for hypertension. The Veteran generally asserts that service connection is warranted for diabetes and hypertension. VA treatment records confirm diagnosis of both conditions. Records also suggest a connection between these conditions and the Veteran’s now service connected psychiatric disability. Specifically, diabetes and hypertension have been listed under axis III of the Veteran’s acquired psychiatric disabilities. No VA examination or opinion has been obtained addressing the above. Given the recent award of service connection, the suggestion of correlation between the conditions, and the record lacking a current opinion as to the etiology of these conditions, a remand is warranted. 13. Entitlement to a rating in excess of 30 percent for inguinal hernia. The Veteran seeks a rating in excess of 30 percent on the basis that his hernia symptomatology is equivalent to the criteria for an increased rating. Specifically, he asserts that the mesh used to repair his hernia is failing “to hold the hernia in” and causing him significant pain and impairment equivalent to that warranting a 60 percent rating. Although this argument was first raised in his July 2013 NOD no opinion has been obtained addressing his contentions. An opinion should be obtained. In addition, as the Veteran has not had a formal VA examination since March 2013, a new opinion addressing the severity of his condition must be obtained. 14. Entitlement to a TDIU. 15. Entitlement to SMC benefits. The Veteran does not currently meet the schedular requirement for TDIU. C.F.R. § 4.16 (a). However, as a result of this decision, service connection has now been established for hearing loss, tinnitus, MDD, and migraine headaches. The ratings assigned to these disabilities will clearly have some influence on the question of whether he now meets the schedular threshold. Adjudication of this matter is deferred. The resolution of the Veteran’s increased rating claim and the effectuation of the grants of service connection may also influence the merits of his claim for SMC based on the need for regular aid and attendance or housebound status. Accordingly, the claim for SMC is inextricably intertwined with these claims remanded herein. Harris, 1 Vet. App. 180, 183 (1991). Remand of the inextricably intertwined SMC claim is, thus, also required. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment medical records and associate them with the claims file. 2. Obtain VA examinations and opinions to ascertain the nature and etiology of the Veteran’s disabilities, claimed as sleep apnea, TBI, and arthritis of the upper extremities and left side of body. (a.) Identify/diagnose any sleep or brain disabilities present throughout the period on appeal. It should be specifically stated whether the Veteran has separate and distinct disabilities or whether he experiences sleep or cognitive problems that are symptoms of a service connected disability. As to the claimed disability of the upper extremity, to include arthritis the examiner should address disabilities that presently exists or that has existed during the appeal period. In the event that the criteria for a diagnosis of arthritis or other upper extremity disability of the left side is not met, it is noted that pain or weakness resulting in functional impairment may constitute a disability for service-connection purposes. So, the examiner is to specifically state whether there is any functional impairment associated with the Veteran’s complaints of pain and/or weakness. The “Functional Impact” section of the report of examination should be completed. If there is no functional impairment, explain why.   (b.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed disabilities had their onset in or was otherwise related to military service? Why or why not? (c.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed disabilities were caused by the now service-connected MDD, headaches, and/or hernia? Why or why not? (d.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed disabilities underwent any incremental increase in disability, regardless of its permanence, due to the now service-connected MDD, headaches, and/or hernia? (e.) As to the claimed TBI, VA treatment records note a current diagnosis of organic brain syndrome. Treatment records document this diagnosis at least as early as 1997, as well as a diagnosis of cerebral dysfunction and brain damage shortly after separation in 1982. Additionally, any opinion finding no incremental increase in the severity of this condition must address whether the cognitive impairments associated with the Veteran’s service connected MDD aggravates the condition. The examiner must also address what relationship if any the Veteran’s brain dysfunction and no service-connected headache disability share. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. A complete rationale must be provided for any opinion offered. Obtain a medical opinion(s) to determine the etiology of any currently present hypertension and diabetes. The reviewer is asked to address the following as it pertains to his or her respective disability: (f.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed hypertension; and/or diabetes had its onset in or was otherwise related to military service? Why or why not? (g.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed hypertension and/or diabetes was caused by the now service-connected MDD? Why or why not? (h.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed hypertension and/or diabetes underwent any incremental increase in disability, regardless of its permanence, due to the now service-connected MDD.   (i.) The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (j.) A complete rationale must be provided for any opinion offered. The rationale must address whether the Veteran’s psychiatric symptomatology listed on August 2017 DBQ, and throughout the record, could have incremental increased his diabetes and hypertension. The examiner must address the significance of hypertension and diabetes being listed under axis III of treatment records diagnosing depression and/or MDD throughout the appeal. 3. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected inguinal hernia repair left side. The examiner must address whether the Veteran’s symptomatology is equivalent to having a hernia that is “large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable.” In so doing, the examiner must address the contentions raised by the Veteran within his July 2013 notice of disagreement. 4. If, and only if, the Veteran does not met schedular requirements for TDIU for the full period on appeal, refer his claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran’s service-connected disabilities, employment history, education and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). All documentation from this entity must be added to the claims file. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.