Citation Nr: 21003707 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-39 646 DATE: January 22, 2021 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric condition, to include PTSD and anxiety, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied in a June 2014 rating decision because there was no evidence that the Veteran had a current diagnosis of hearing loss in his right ear for VA purposes and there was no evidence of a link between his left ear hearing loss and his military service. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 2. The evidence which has been secured since the last final denial regarding entitlement to service connection for bilateral hearing loss is both new and material. 3. The Veteran’s claim of entitlement to service connection for PTSD was denied in a June 2014 rating decision because there was no evidence that the Veteran had a current diagnosis of PTSD or evidence confirming a link between current symptoms and an in-service stressor. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 4. The evidence which has been secured since the last final denial regarding entitlement to service connection for PTSD is both new and material. 5. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran’s claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the Veteran’s claim of entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1988 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. In January 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript will be associated with the claims file. New and Material Evidence Generally, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, 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 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. As discussed above, the record reflects that the Veteran was originally denied service connection for bilateral hearing loss in June 2014 rating decision. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. Since the last final denial, a VA medical opinion regarding the etiology of the Veteran’s claimed bilateral hearing loss was obtained, and the Veteran has submitted a statement from his primary care physician regarding his bilateral hearing loss. See September 2015 VA Medical Opinion Disability Benefits Questionnaire (DBQ); March 2015 Physician Statement. Additionally, the Veteran testified before the undersigned VLJ in January 2021. The Board finds this evidence to be “new” as it was not previously of record. Further, the Board finds this evidence to be material as it concerns unestablished facts. Given that there is new and material evidence, the claim is reopened. Notably, the claim requires further development, which is addressed in the remand section below. 2. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection PTSD. As discussed above, the record reflects that the Veteran was originally denied service connection PTSD in June 2014 rating decision. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. Since the last final denial, the Veteran has submitted a letter from LiveWell Therapy, which notes the Veteran has a current diagnosis of PTSD. See November 2015 Private Treatment Correspondence. Additionally, the Veteran has submitted a statement from his former commanding officer, attesting that the Veteran experienced constant panic attacks in service, and to witnessing a severe panic attach while the Veteran was stationed in Germany. See S. Jackson February 2016 Lay Statement. Further, the Veteran testified before the undersigned VLJ in January 2021. The Board finds this evidence to be “new” as it was not previously of record. Further, the Board finds this evidence to be material as it concerns unestablished facts. Given that there is new and material evidence, the claim is reopened. Notably, the claim requires further development, which is addressed in the remand section below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic conditions, an alternative method of establishing the third Shedden element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. § 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When 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.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for tinnitus is granted. The Veteran contends that his tinnitus is etiologically related to his active duty service. In September 2015, the Veteran underwent a VA examination, in which the examiner opined the Veteran’s tinnitus was less likely than not related to service. Though acknowledging that he reported his tinnitus began during service, the examiner noted that the Veteran’s service treatment records (STRs) were silent with respect to complaints of tinnitus and that tinnitus has a known association with hearing loss. See September 2015 VA Medical Opinion DBQ. Tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report experiencing the symptom of ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran asserts his tinnitus began while in service when he was performing his duties as a cannon crew member and was provided inadequate hearing protection. See December 2012 VA Form 21-526. His lay statements are credible and consistent with the circumstances of his service, particularly in light of his MOS. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. When the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the reasons discussed above, and resolving reasonable in favor of the Veteran, entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND As an initial matter, the Board notes that the Veteran filed a claim of entitlement to PTSD. See July 2013 VA Form 21-526b. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran has been diagnosed with anxiety and PTSD. See Loma Linda VA Healthcare System (VAHCS), received June 2014 in CAPRI; November 2015 Private Treatment Correspondence. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for an acquired psychiatric condition, to include PTSD and anxiety. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that relevant VA records have not been associated with the claims file. Specifically, the record indicates that the Veteran receives treatment within the Loma Linda VAHCS. However, no records relating to such treatment since December 2016 have been associated with the claims file. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of his claimed bilateral hearing loss. In May 2014, the Veteran underwent a VA examination in which the examiner opined that the Veteran’s left ear hearing loss was less likely than not caused by or result of his military service. In support of this opinion, the examiner stated that the Veteran’s hearing sensitivity did not change during service. As the Veteran did not have right ear hearing loss for VA purposes, no etiological opinion was provided. See May 2014 VA Hearing Loss and Tinnitus DBQ. In September 2015, a VA opinion was obtained, without an examination, in which the audiologist opined that the Veteran’s left ear hearing loss was less likely than not caused by or a result of his military noise exposure. In support of this opinion, the audiologist noted that the Veteran did not experience any changes in hearing during service. As the Veteran did not have right ear hearing loss for VA purposes, no etiological opinion was provided. See September 2015 VA Medical Opinion DBQ. The Board finds both the May 2014 VA examination report and the September 2015 VA medical opinion to be inadequate for decision-making purposes. As discussed above, both opinions note that the Veteran did not experience any changes in hearing during service. However, the Veteran’s service treatment records (STRs) indicate that the Veteran experienced a threshold shift in the left ear at 2000 Hertz. See STR-Medical. As such, both the May 2014 and September 2015 etiological opinions appear to be based, in part, on an inaccurate factual premise and, therefore, are inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, it is well settled that the absence of a hearing disability in service is not fatal to a claim of entitlement to service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, the proper inquiry is whether the Veteran’s current hearing loss is related to the Veteran’s conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Moreover, a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, supra. In addition to clear conclusions with supporting data, a medical opinion must contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 201 (2008). As both the May 2014 and September 2015 etiological opinions rely, without elaboration, on the absence of hearing loss during service, the opinions are inadequate to the extent they rely on such. For these reasons, the Board finds the May 2014 VA examination report and September 2015 VA medical opinion to be inadequate with respect to the etiology of the Veteran’s hearing loss. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran’s claimed bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for an acquired psychiatric condition, to include PTSD and anxiety, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, the record indicates that relevant VA records have not been associated with the claims file. Additionally, the record indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran receives treatment at LiveWell Therapy. See November 2015 Private Treatment Correspondence. However, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. As such, a remand is necessary to allow the AOJ to attempt to obtain pertinent medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Bell v. Derwinski, supra. Second, a remand is necessary to provide the Veteran with a VA examination to determine the nature and etiology of his claimed acquired psychiatric condition, to include PTSD and anxiety. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the claims file indicates that the Veteran has diagnoses of PTSD and anxiety. See Loma Linda VA Healthcare System (VAHCS), received June 2014 in CAPRI; November 2015 Private Treatment Correspondence. Additionally, the Veteran has asserted that his conditions are related to service, and he has submitted a statement from a former commanding officer asserting that the Veteran experienced constant panic attacks during service. See S. Jackson February 2016 Lay Statement. However, there is no medical opinion regarding the etiology of the Veteran’s claimed acquired psychiatric condition. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided a VA examination to determine the etiology of his claimed acquired psychiatric condition. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding VA treatment records, including records relating to treatment within Loma Linda VAHCS from December 2016 to current, as well as any pertinent private records, including records relating to treatment at LiveWell Therapy. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of the Veteran’s claimed bilateral hearing loss. The entire claims file must be provided to and reviewed by the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including employment, noise exposure, and onset and progression of symptomatology. (b.) Provide an opine as to whether it is at least as likely as not (i.e., 50 percent of greater probability) that the Veteran’s bilateral hearing loss is related to his military service, to include conceded noise exposure. Any opinion expressed by the examiner must contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. THE EXAMINER IS REMINDED THAT NOTING THAT HEARING LOSS DID NOT MANIFEST IN SERVICE AS THE SOLE BASIS FOR FORMING A NEGATIVE NEXUS OPINION, WITHOUT ADDITIONAL EXPLANATION, WILL NOT BE ADEQUATE. THE EXAMINER IS ALSO REMINDED THAT, IF AN OPINION IS BASED ON THE INSTITUTE OF MEDICINE’S 2006 REPORT, TITLED “NOISE AND MILITARY SERVICE: IMPLICATIONS FOR HEARING LOSS AND TINNITUS,” THE APPARENTLY CONTRADICTORY FINDINGS THEREIN MUST BE ADDRESSED. SEE MCCRAY V. WILKIE, 31 Vet. App. 243 (2019). 4. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of the Veteran’s claimed acquired psychiatric condition. The entire claims file must be provided to and reviewed by the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset and progression of symptomatology and employment. (b.) If the Veteran is diagnoses with PTSD, the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such is related to an in-service stressor. The examiner should specify which stressor was sufficient to produce PTSD, whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied, and whether there is a link between the current symptomatology and one or more of the in-service stressors. (c.) For each diagnosed psychiatric condition other than PTSD, the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition incurred in or is otherwise related to the Veteran’s active duty service. (d.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran’s lay statements; ii. Lay Statements submitted by G. Marunich, J. Fisher, S. Jackson, C. Nal, and D. Nal; and iii. THE JULY 1991 IN-SERVICE TREATMENT FOR A RIGHT HAND INJURY WITH HUMAN BITE MARK. (e.) If any previously diagnosed psychiatric condition is not found on examination, the examiner should address whether such condition has resolved or was misdiagnosed. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner must contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.