Citation Nr: 21063238 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-31 716 DATE: October 13, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. To this extent only, the claim is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder manifested by symptoms of anxiety and stress is remanded. FINDINGS OF FACT 1. A September 1972 rating decision denied service connection for bilateral hearing loss. The Veteran did not appeal the decision. 2. Evidence received since the September 1972 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 1972 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. New and Material Evidence Bilateral Hearing Loss Under 38 U.S.C. § 5108 (2017), VA may reopen a previously and finally disallowed claim when new and material evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial regardless of whether the denial was on the merits or on procedural grounds to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). VA regulation defines "new and material evidence" as follows: "new evidence" means evidence not previously submitted to agency decisionmakers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). To establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue, or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 215, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Although the RO reopened the claim in the September 2019 Statement of the Case (SOC), the Board must independently decide whether new and material evidence has been submitted that warrants reopening of the Veteran's claim regardless of the RO's decision. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim for entitlement to service connection for bilateral hearing loss was initially denied on the merits in a September 1972 rating decision on the basis that the Veteran's service treatment records were "completely negative" for any complaint, treatment, or diagnosis of bilateral hearing loss. The Veteran was notified of the RO's decision later that month and did not appeal that decision. Accordingly, the September 1972 rating decision became final. 38 U.S.C. § 7105, 38 C.F.R. §§ 19.52, 20.1103. The Veteran filed to reopen this claim in January 2018. The relevant evidence received since the September 1972 rating decision consists of post-service medical records and numerous lay statements by the Veteran indicating the onset and continuity of his hearing loss symptomatology. This evidence, evidence not previously submitted to agency decisionmakers and relating to unestablished facts necessary to support the claim (i.e., a current disability and in-service incurrence of the Veteran's condition), raises a reasonable possibility of substantiating the claim; therefore, the Board finds that it constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, as the Board finds that new and material evidence has been submitted, the claim for entitlement to service connection for bilateral hearing loss is reopened. Id. REASONS FOR REMAND 1. Tinnitus 2. Bilateral Hearing Loss 3. Acquired Psychiatric Disorder Manifested by Anxiety and Stress First, the Board acknowledges receipt of information that the Veteran was incarcerated from May 1984 to March 2021. See June 2021 Bureau of Prisons Match. Evidence associated with the claims file indicates that the Veteran sought medical treatment for his claimed conditions during his incarceration. See June 2018 Correspondence from Veteran; August 2019 VA Social Work Outreach Note. Nevertheless, the Veteran's medical records from the Northern Nevada Correctional Center, where the Veteran was incarcerated, have not been obtained. Because these medical records could substantiate the Veteran's claims for service connection, the Board requests that these records be obtained and associated with the claims file. The Board hereby also requests that the Veteran's updated VA and/or private medical records regarding his bilateral hearing loss, tinnitus, and psychiatric condition be obtained and affiliated with the claims file. Additionally, the Board acknowledges March 2018 email correspondence of record indicating that, at that time, VA audiology did not provide examinations regarding the Veteran's claims for hearing loss and tinnitus. Thus, on remand, the Board requests an examination determining the nature and etiology of the Veteran's bilateral hearing loss and tinnitus be conducted and an opinion be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, he was not examined to determine the nature and etiology of his psychiatric condition. However, the Veteran was noted in service to have a congenital disorder as "passive aggressive personality; passive dependent type" in service. See September 1965 Narrative Summary and Psychiatric Evaluation. The Board notes that congenital or developmental defects, which include personality disorders, are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. The Veteran's passive aggressive personality disorder, which is considered a congenital defect, is therefore not a disease or injury for VA compensation purposes, and disability resulting from it may not be service connected. See 38 C.F.R. § 4.127. It can, however, be subject to superimposed disease or injury, and if that superimposed disability or injury occurs during military service, service connection may be warranted for the resultant disability. Id. The Board therefore requests an examination to discuss whether the Veteran has any acquired psychiatric disorders which have been superimposed over an existing personality disorder, and their relationship to service. The matters are REMANDED for the following action: 1. The RO should, with authorization from the Veteran, request the Veteran's medical treatment records from the Northern Nevada Correctional Center. The Veteran should also be invited to submit these records himself. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. The RO should request the Veteran to identify any and all outstanding and/or updated VA and/or private medical records regarding his tinnitus, bilateral hearing loss, and acquired psychiatric disorder. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. After completing the foregoing development, schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the natures and etiologies of the Veteran's bilateral hearing loss and/or tinnitus. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. (a) The examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral hearing loss manifested during, or is the result of, his active duty service. (b) The examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's tinnitus manifested during, or is the result of, his active duty service. (c) The examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's tinnitus was either (i) caused or (ii) aggravated by his bilateral hearing loss. NOTE: With respect to the question concerning aggravation, the examiner is advised that 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the examiner should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's post-service VA and private medical records, including those from Northern Nevada Correctional Center; and (iii) The Veteran's competent lay statements regarding his first-hand in-service experiences and the onset and continuity of his hearing loss and/or tinnitus symptomatology. If the examiner determines that the Veteran's bilateral hearing loss and/or tinnitus is/are less likely than not due to active duty service and/or that his tinnitus is less likely than not due to bilateral hearing, the examiner should discuss what other factor(s) caused the disorder(s). In other words, the examiner should ascertain the most likely etiology of the Veteran's bilateral hearing loss and/or tinnitus. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any and all psychiatric disorder(s) attributable to the Veteran for the period on appeal. The entire claims file, including a copy of this remand, must be made available to the examiner, who must note its review. (a) The examiner should identify any and all psychiatric condition(s) attributable to the Veteran throughout the period on appeal. (b) If a diagnosis of PTSD is deemed appropriate, the examiner should clearly explain how the diagnostic criteria are met and comment upon the link between the Veteran's diagnosis and his active duty service. (c) For each condition so identified, the examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's condition manifested during, or is the result of, his active duty service. (d) The examiner should discuss the Veteran's preexisting personality disorder and discuss whether any separate, acquired psychiatric disorder or additional symptomatology has been superimposed over the Veteran's underlying congenital condition. In formulating his or her opinion(s) the examiner should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's post-service VA and/or private medical records, including from Northern Nevada Correctional Center; and (iii) The Veteran's competent lay statements regarding his first-hand in-service experiences and the onset and continuity of his symptomatology. If the examiner determines that the Veteran's acquired psychiatric disorder(s) is/are less likely than not the result of his active duty service and/or that the Veteran's preexisting personality disorder was not superimposed by any additional psychiatric condition, the examiner should discuss what other factor(s) caused the disorder(s). In other words, the examiner should ascertain the most likely etiology of the Veteran's acquired psychiatric condition(s). The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.