Citation Nr: 21064399 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-33 773 DATE: October 20, 2021 ORDER New and material evidence having been received, the application to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence having been received, the application to reopen a claim of service connection for right ear hearing loss is granted. Service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD) is granted. Service connection for sleep apnea is granted. Service connection for tinnitus is granted. REMANDED Service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. In an August 2006 rating decision, the RO denied service connection for PTSD, and in an August 2006 letter, notified him of the determination, but he did not appeal the determination and the decision became final. 2. The evidence received since the August 2006 rating decision regarding service connection for PTSD is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran's claim. 3. In an April 2013 rating decision, the RO denied service connection for right ear hearing loss, and in an April 2013 letter, notified him of the determination, but he did not appeal the determination and the decision became final. 4. The evidence received since the April 2013 rating decision regarding service connection for right ear hearing loss is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran's claim. 5. The Veteran's psychiatric disability had its onset in service. 6. The Veteran's sleep apnea was caused by his service-connected psychiatric disability. 7. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. 2. Evidence received since the August 2006 rating decision is new and material; the claim of service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The April 2013 rating decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. 4. Evidence received since the April 2013 rating decision is new and material; the claim of service connection for right ear hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 5. The criteria for service connection for a psychiatric disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for tinnitus have been met. 38 U.S.C. § § 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps. from July 1975 to May 1982. 1. New and material evidence having been received, the application to reopen a claim of service connection for posttraumatic stress disorder (PTSD) 2. New and material evidence having been received, the application to reopen a claim of service connection for right ear hearing loss Generally, a claim which has been denied in an unappealed rating decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the RO denied the Veteran's claim for service connection for PTSD in an August 2006 rating decision because the evidence failed to show Veteran was exposed to a verifiable stressful situation while in service. The claim was denied again in November 2009 and October 2014 rating decisions as the lay statements and VA treatment records submitted were not found to be sufficient to establish a nexus between the condition and military service. The RO denied the Veteran's claim for service connection for right ear hearing loss in an April 2013 rating decision because the evidence failed to show a link between the diagnosed medical condition and military service. The claim was denied again in a December 2015 rating decision as the new evidence submitted was not found to be sufficient to establish a nexus between the condition and military service. Since the final decision, evidence has been received regarding the Veteran's service connection claims for his PTSD and right ear hearing loss disabilities. Specifically, the Veteran submitted several buddy statements in support of his claim for PTSD, which corroborate his stressors in relation to his claim. The Veteran also submitted a non-VA examination for his PTSD from April 2014 and a positive nexus opinion for PTSD from a licensed psychologist in July 2017. As to his claim for right ear hearing loss, the Veteran submitted in support an April 2013 hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) and lay statements in support from May 2017 and July 2020. The Board finds that the new evidence, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's PTSD and right ear hearing loss claims. The newly submitted evidence, which was not previously considered in the Veteran's claim to reopen the issues from November 2009, October 2014 and December 2015 rating decisions raises a reasonable possibility of substantiating the claims and is therefore new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the claims are reopened. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). 3. Service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD) The Veteran's claim of service connection for PTSD has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran essentially contends that he developed a psychiatric disability, claimed as PTSD, as a result of multiple stressors while on active duty from 1975 to 1982. He did not re-enlist to serve in Beirut and felt "a great amount of guilt," while also being subject to abuse, discrimination and fearing for his life while serving in the Marines. See February 2009 Statement in Support of Claim. The Board finds that service connection is warranted. The Veteran has a diagnosis of PTSD. See April 2014 PTSD DBQ; see also April 2015 CAPRI Records. The Veteran chronicled his incidents of racial discrimination and abuse in a February 2009 Correspondence letter, in which he added he became an alcoholic, defiant, introverted, avoided crowds and loud noises and eventually divorced after he was discharged from the Marines. The Veteran's spouse also submitted a letter in support of his claim, stating she has been married to him for 21 years and has experienced Veteran undergoing a personality change including mood swings, being verbally abusive and developing an unstable nature. She added he sometimes has trouble controlling his anger, is irritated easily, has a lack of trust in others, and this behavior has stemmed from his time in the Marines. See February 2009 Buddy Statement. The Veteran additionally submitted a lay statement describing a traumatic stressor that occurred in service where a fellow soldier shot himself in the head and Veteran was there to witness the incident. See October 2014 Statement in Support of Claim. This event was corroborated by a fellow veteran who served with the Veteran at the time. See Marcy 2017 Third Party Correspondence. In a May 2010 letter, a psychiatrist stated he was treating Veteran for severe PTSD and associated depression, while Veteran is experiencing high anxiety, hypervigilance and a need to avoid social interactions. The psychiatrist held the range of emotional and cognitive difficulties would seriously compromise Veteran's ability to hold gainful employment. Another doctor submitted a letter in support of Veteran's claim in July 2014, stating Veteran has been diagnosed with PTSD for the prior 4-5 years and he has suffered from not being able to express his fears and emotions while in the Marine Corps. and he resorted to drinking alcohol afterwards to numb his feelings; Veteran was attending group therapy for PTSD and the doctor opined the trauma experiences while in service have led to the psychological disability. See July 2014 Third Party Correspondence. Two separate medical nexus opinions were also submitted in favor of the Veteran's claim. In May 2016, a physician opined that, after a review of the records, it was more likely than not that the Veteran's PTSD was a result of his military service, based on the May 2015 VA medical records that diagnosed PTSD. Additionally, a licensed psychologist submitted a positive medical nexus opinion in July 2017, concluding that the Veteran meets DSM-5 criteria for PTSD, he experienced an onset of mental health symptoms during service, and PTSD was at least as likely as not the direct result of the several incidents that occurred while he was in service. See July 2017 Medical Treatment Records. The competent and credible lay evidence establishes that the Veteran's psychiatric disability is related to his military experiences. The Veteran reports that his psychiatric disability began during service and has been recurrent since that time. Layno v. Brown, 6 Vet. App. 465 (1994). As the evidence supports a finding that the Veteran's psychiatric disability had its onset while on active duty, service connection for a psychiatric disability, claimed as PTSD, is warranted. 4. Service connection for sleep apnea The Veteran contends that his current obstructive sleep apnea was caused by his service-connected psychiatric disability. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The Veteran's service treatment records reflected complaints and treatment similar to that of sleep apnea symptoms, however, the RO held the medical evidence supported the conclusion that a persistent disability was not present in service. See December 2015 Rating Decision. Veteran was seen briefly in service for shortness of breath and gasping which are "distinct and separate diagnoses." Id. The Veteran was provided a VA medical opinion in regard to direct service connection for sleep apnea; the examiner opted for a negative nexus opinion, concluding Veteran was not diagnosed with sleep apnea until many years after service, and did not have a diagnosis of sleep apnea while in service. See December 2015 C&P Exam. VA medical treatment records show that Veteran was diagnosed with sleep apnea, diagnosed in a non-VA facility, in May 2011, and was provided CPAP subsequently through a VA facility. A sleep study was provided in August 2011, and Veteran was diagnosed with obstructive sleep apnea hypopnea syndrome. See May 2011, October 2011, February 2012 & July 2016 CAPRI Records. The Veteran also submitted a positive nexus opinion regarding his OSA in September 2017. The physician concluded that Veteran was diagnosed with OSA in August 2011 and has been prescribed CPAP for treatment of the condition; Veteran initially sought medical attention for sleep concerns based on psychiatric symptoms that began during his military service, and the medical literature supports a strong connection between PTSD and later development of OSA. The physician added that Veteran's disrupted sleep related to nightmares, hypervigilance, and fearful associations with the darkness, all symptoms of his service-related psychiatric condition, led to a chronic maladaptive pattern of non-restorative sleep. Therefore, the physician opined that the Veteran's psychiatric condition caused the significant development of sleep disturbances and it is at least as likely as not that OSA's onset was secondary caused by his psychiatric disability. See September 2017 Correspondence. The Board finds that the competent lay evidence, coupled with the positive nexus opinions submitted on behalf of the Veteran's service connection claim show that the preponderance of the evidence supports the notion that the Veteran's sleep apnea is secondarily related to his service-connected psychiatric disability. Accordingly, the Board concludes that service connection for OSA, as secondary to service-connected psychiatric disability, is warranted. 5. Service connection for tinnitus The Veteran asserts that his tinnitus is the result of in-service noise exposure. Certain chronic diseases, like tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. § § 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board finds that service connection for tinnitus is warranted. The Veteran has reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began during service. See February 2013 Statement in Support of Claim. Additionally, the Veteran stated he worked in the hangar where airplane repairs were completed while on active duty and he was exposed to hazardous engine noise without adequate hearing protection. See Id. In May 2017, the Veteran stated he noticed constant ringing in both ears six months after being discharged, and the problem has been recurrent since that time and continued to get worse. See May 2017 Correspondence. Even though his service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports concerning his noise exposure and the onset of his tinnitus in service, and the Board finds his reports to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Fountain. As such, in light of the competent and credible evidence of tinnitus during and since service, service connection is warranted. REASONS FOR REMAND 1. Service connection for right ear hearing loss is remanded. The Veteran seeks service connection for right ear hearing loss. The Veteran was afforded an April 2013 VA audiological examination which showed he had current right ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. The VA examiner opined in the medical opinion that it was less likely as not the right ear hearing loss was a result of acoustic trauma sustained while in service as there was loss in the low frequencies at entrance, and noise exposure or acoustic trauma would present itself with impairment in the high frequencies. The Veteran subsequently expressed in lay statements submitted in May 2017 and July 2020 that his hearing has worsened throughout the years and his MOS as a nuclear-biological weapons specialist and tour of duty working at an airplane hangar for three years led to hearing issues that led to the onset of his right ear hearing loss in service. As the Veteran's last audiological VA examination was approximately eight and a half years ago, and since he has contended that his hearing has worsened, the Board finds he must be afforded a new VA examination to determine if he has right ear hearing loss for VA purposes, and if so, whether that hearing loss is due to service. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his hearing loss that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) of his claimed right ear hearing loss. (Continued on the next page) The examiner must conduct an audiological evaluation, including speech recognition testing, to determine whether the Veteran currently has a right ear hearing loss disability for VA purposes. The examiner must also provide an opinion concerning whether the Veteran's right ear hearing loss is at least as likely as not related to an in-service injury, event, or disease, including his in-service noise exposure. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.