Citation Nr: 21003803 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-06 260 DATE: January 22, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, including as a result of military sexual trauma, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A June 2013 rating decision reopened and continued the prior denial of service connection for PTSD. The Veteran did not formally appeal the decision on this issue, nor did he submit new and material evidence which prevented the decision on this issue from becoming final. 2. The evidence associated with the file since the June 2013 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the PTSD claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating this issue. 3. Affording the Veteran the benefit of the doubt, he has a current disability of tinnitus which is etiologically related to his active service. CONCLUSIONS OF LAW 1. The June 2013 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The evidence received since the June 2013 rating decision is new and material evidence and serves to reopen the Veteran’s claim for service connection for PTSD. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1977 to July 1980. During the current appeal and specifically in October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). New and Material Evidence—PTSD A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the Regional Office (RO) decided a reopening question, the Board of Veterans’ Appeals (Board) must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that 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 to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2013 rating decision, the RO reopened and denied service connection for PTSD because there was insufficient evidence to allow for corroboration of the Veteran’s asserted stressor events. Although the Veteran initially appealed the denial of service connection for PTSD in a July 2013 notice of disagreement, he did not timely perfect an appeal on this issue, nor did he submit any additional evidence within the time frame needed to prevent the decision from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the June 2013 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the June 2013 rating decision includes evidence he submitted in October 2019 detailing military sexual trauma he experienced in service and witness statements describing his in-service behavior changes. This evidence, presumed as credible for new and material purposes, relates to an element of the Veteran’s claim which was not met when the claim was last denied in June 2013. Thus, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability, to include PTSD. Thus, this claim is reopened. Service Connection – Tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, including organic diseases of the nervous system, such as tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to discuss the onset, and continuity, of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran’s DD Form 214 indicates that his military occupational specialty (MOS) was that of an indirect fire infantryman, an MOS which is associated with a high probability of exposure to hazardous noise. Thus, the Board finds that the Veteran was exposed to hazardous noise in service and that the in-service event element of his claim for service connection for tinnitus is met. At the October 2019 hearing, the Veteran testified that his current tinnitus symptoms began during his active duty. Tinnitus is a disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating these claims is to assess the credibility of the Veteran’s statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has no reason to doubt the credibility of the Veteran’s lay statements that he currently experiences tinnitus. Thus, the current disability element of this claim is also met, and the question remaining is whether a causal relationship, or nexus, exists between the Veteran’s current tinnitus and his active service, or whether the disability onset therein. The Veteran has consistently reported that he began to experience symptoms of tinnitus in active service. He reported this symptomatology to a May 2016 VA hearing loss and tinnitus examiner, and he testified to the same at the October 2019 Board hearing. According to the May 2016 VA examination report and the October 2019 hearing transcript, the Veteran has reported that the tinnitus did not exist prior to service and that it has continued without stopping since that time. In this case, the Board finds the Veteran’s statements about his tinnitus symptoms and their onset credible, as he has consistently reported the same onset as being in service. The Board recognizes that the May 2016 VA examiner opined against service connection for the Veteran’s bilateral tinnitus, based upon his finding that there was no diagnosis of tinnitus (as there was no pathology upon which a diagnosis could be made). However, the examination report also states that, at that time, the Veteran reported recurrent tinnitus. As previously explained, the Veteran is competent to report experiencing symptoms of tinnitus. As such, the negative nexus opinion rendered by the examiner is of no probative value as it is based on an incorrect statement that there was no pathology to render a diagnosis of tinnitus. Thus, the Board concludes that the May 2016 VA medical opinion is not adequate. 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, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In the current appeal for service connection for tinnitus, the Board affords such benefit of the doubt to the Veteran. REASONS FOR REMAND As an initial matter, the Board notes that the Veteran’s VA treatment records have not been updated in the claims file since November 2016. Updated records should be obtained as they may contain information which could help substantiate the Veteran’s claims. Service connection for an acquired psychiatric disability, to include PTSD, including as a result of military sexual trauma When a claimant files a claim for VA benefits, he/she seeks service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the evidence indicates different causes may be responsible for the Veteran’s psychiatric symptoms. Accordingly, the psychiatric issue remaining on appeal has been recharacterized as is addressed herein. With regard to the PTSD aspect of this claim, the Board notes that service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). VA regulations also provide that, if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the “preponderance of the evidence” because such a requirement would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998). In this case, in October 2019, the Veteran submitted a detailed written account of an in-service sexual personal assault committed against him. He also submitted written witness statements attesting to how his behavior changed between the time he entered, and the time he separated from, service. While these statements may be enough to support a finding of an in-service stressor sufficient for a diagnosis of PTSD, the Veteran has not been afforded a VA examination to confirm what acquired psychiatric disabilities he has pursuant to the DSM-5 criteria. In light of his report of an in-service military sexual assault, the witness statements corroborating a change in his personality during service, and the evidence of psychiatric diagnoses in the record—to include PTSD and a major depressive disorder (See January 15, 2019, letter from VA staff psychiatrist E.C., MD, associated with the claims file on October 17, 2019), a VA examination is needed to determine the nature and etiology of any acquired psychiatric disability he may have. Service connection for bilateral hearing loss The Veteran also seeks service connection for bilateral hearing loss, which he asserts is related to service. At a May 2016 VA hearing loss examination, the examiner was unable to determine whether the Veteran had hearing loss in either ear. The examination report states that the hearing tests were not valid for rating purposes because the pathology of hearing loss could not be verified due to inconsistencies in the Veteran’s volunteered responses after reinstruction and retest. At the October 2019 hearing, the Veteran testified that he experiences symptoms of hearing loss, and his representative asked that the Veteran be accorded a new VA examination to determine whether he has hearing loss for VA purposes. The Board finds that a new VA hearing loss examination is warranted to determine the nature and etiology of the Veteran’s hearing loss, if diagnosed, before the Board can decide this claim. In this regard, the Board hereby notifies the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA’s duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, the Veteran must make reasonable efforts to assist VA in determining his level of hearing acuity on VA examination. Accordingly, these matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2016 through the present. 2. Then, schedule the Veteran for a VA psychiatric examination with an appropriate clinician. The examiner should diagnose any acquired psychiatric disability using the DSM-5, to include PTSD and a depressive disorder. (a.) If PTSD pursuant to the DSM-5 is found, the examiner should opine as to whether it is at least as likely as not (i.e., a 50% or greater likelihood) that the Veteran’s PTSD was caused by his military service. Why or why not? In so doing, the examiner should identify the in service stressor upon which the diagnosis is based. The examiner should specifically explain whether any of the Veteran’s alleged stressors of in-service personal assault (or military sexual assault) should be considered a sufficient stressor to support the diagnosis of PTSD. (b.) If an acquired psychiatric disorder other than PTSD, to include a depressive disorder, is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that such disability began during service or was otherwise caused by his military service. In providing the requested opinions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner must specifically consider and discuss the lay statements of record, and the opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or whether he/she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Also, schedule the Veteran for an appropriate VA examination to diagnose and to determine the nature and etiology of any right and/or left ear hearing loss he may have. The examiner should review the entire claims file and conduct all necessary tests and studies. Then, if hearing loss is found for either, or both, ear, the examiner is asked to opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any right and/or left ear hearing loss onset in, or is otherwise related to, the Veteran’s service or any incident therein? The examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.