Citation Nr: 21065469 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-15 575 DATE: October 26, 2021 ORDER The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. The previously denied claim of entitlement to service connection for cluster headaches is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for cluster headaches is remanded. FINDINGS OF FACT 1. In a February 2011 rating decision, the RO denied service connection for bilateral hearing loss; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 2. Evidence associated with the claims file since the February 2011 denial relates to unestablished facts necessary to substantiate the claims and raise a reasonable possibility of substantiating the claim. 3. In a February 2011 rating decision, the RO denied service connection for PTSD; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 4. Evidence associated with the claims file since the February 2011 denial relates to unestablished facts necessary to substantiate the claims and raise a reasonable possibility of substantiating the claim. 5. In a February 2011 rating decision, the RO denied service connection for cluster headaches; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 6. Evidence associated with the claims file since the February 2011 denial relates to unestablished facts necessary to substantiate the claims and raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2011 RO decision, which denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The February 2011 RO decision, which denied service connection for an PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The February 2011 RO decision, which denied service connection for cluster headaches, to include as due to an undiagnosed illness, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. New and material evidence has been received to reopen the claim of service connection for cluster headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, including from September 1990 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is in the Veteran's file. The reopened claim of entitlement to service connection for a PTSD has been recharacterized as service connection of an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a February 2011 rating decision, the RO denied service connection for bilateral hearing loss, for PTSD and for cluster headaches. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the February 2011 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence received since that rating decision includes VA treatment records, VA examination reports, lay statements and a January 2021 Board hearing transcript. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claims, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claims for bilateral hearing loss, for an acquired psychiatric disorder and for cluster headache. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. All questions regarding the merits of the reopened claims, are addressed in the REMAND section of this decision. REASONS FOR REMAND As an initial matter, a review of the record shows that a VA memorandum of Formal Finding, dated in August 2010, indicates the unavailability of the Veteran's service treatment records. In the January 2017 VA hearing loss and tinnitus examination report, it is noted that while the Veteran's service treatment records where not located in the electronic file, the VA examiner reviewed service treatment records from the Defense Occupational and Environmental Health Readiness System (DOEHRS), including hearing tests dated October 2, 1990 and May 7, 1991. As the hearing tests, and possibly other service treatment records, are not of record in the Veteran's claims file, a remand is needed to obtain these records and any others that pertain to the claims on appeal. Entitlement to service connection for bilateral hearing loss is remanded. In an April 2015 correspondence, in support of his bilateral hearing loss claim, the Veteran stated that during his entire deployment, he drove a vehicle that was extremely loud due to an exhaust stack which was broken and not repaired, and that he drove bulldozers. He also stated that a grenade was discharged near him and that his ears rang for a few days after the incident. The Veteran was afforded a VA hearing loss and tinnitus examination in January 2017. A diagnosis of bilateral sensorineural hearing loss was provided. A negative nexus opinion was provided; however, as noted above, service treatment records not associated with the claims file were reviewed. In addition, the VA examiner indicated that the Veteran's hearing loss pre-existed service and provided a rationale that there were no significant threshold shifts noted. At his January 2021 Board hearing, the Veteran noted that his first indication of hearing loss was after a grenade incident. He also stated that he ran a bulldozer "nonstop". He noted that he read lips and watched television with the volume too loud. Of note, a Veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111. If a pre-existing disorder is noted upon entry into service, service connection may still be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the VA examiner conducted an evaluation of the Veteran's bilateral hearing loss condition at the time, given the foregoing, the Board finds that a remand is necessary to fully and fairly adjudicate the issue. Additionally, it is unclear as to whether a pre-existing condition existed. Entitlement to service connection for an acquired psychiatric disorder is remanded. A review of the Veteran's claims file shows a VA memorandum of Formal Finding, dated in September 2010, indicating a formal finding of a lack of information required to corroborate stressors associated with a claim for PTSD. Private medical records reflect diagnoses of major depression and anxiety. VA treatment records show diagnoses of major depressive disorder, PTSD, and mood disorder. In a correspondence dated in April 2015, in support of his PTSD claim, the Veteran noted that he was near a grenade that discharged and injured a fellow service member. He also stated that he almost shot a British soldier, that his equipment and weapon were almost stolen by driver, that he came under chemical attacks multiple times and that his barracks was attacked in Dhahran. A buddy statement was also included. The Veteran was afforded a VA PTSD examination in January 2017. A diagnosis was not provided. The VA examiner stated that the Veteran did not meet the DSM-5 diagnostic criteria for the diagnosis of PTSD based on objective test results and diagnostic clinical interview from the examination. It was noted that the Veteran currently would meet the DSM-5 diagnostic criteria for a depressive disorder based on self-report, but failure of symptom validity precluded the valid diagnosis of any mental health disorder at the evaluation. At his January 2021 Board hearing, the Veteran noted that he experienced nightmares during service. He stated that there was an incident when a hand grenade went off and he was knocked down. He noted that he was hypervigilant, paranoid, that he had his phone checked for bugs and that he did not have many feelings for others. The criteria for having a current disability is met if the Veteran had the disability at any time during the pendency of the appeal, even if such disability is now resolved. See McLain v. Nicholson, 21 Vet. App. 319 (2007). With an adjudication of the expanded claim of service connection for an acquired psychiatric disorder, the Veteran must be scheduled for another VA psychiatric examination which contemplates his complete psychiatric history. Barr, supra. Entitlement to service connection for cluster headaches is remanded. In a correspondence dated in April 2015, in support of his cluster headaches claim, the Veteran stated that he experienced muscle and joint pain due to his headaches. VA treatment records show an assessment of episodic cluster headaches The Veteran was afforded a VA headaches examination in January 2017. A diagnosis of cluster headaches was provided. A negative nexus opinion was provided. The VA examiner noted a review of the Veteran's claims file. It was noted that the onset of cluster headaches was about 1995, according to the Veteran. The VA examiner stated that cluster headaches were a medical condition with a clear and specific etiology and diagnosis. Therefore, they were less likely than not due to or caused by a specific exposure event during the Veteran's service in Southwest Asia. At his January 2021 Board hearing, the Veteran noted that his cluster headaches began during service and became debilitating in the early 1990s after returning home. He stated that he used a continuous positive airway pressure machine which helped his headaches. Given the forgoing, the Board finds that if, and only if, service treatment records pertaining to the Veteran's headache condition are obtained on remand, an addendum opinion as to the etiology of the Veteran's claimed disability should be obtained from the January 2017 VA examiner. The matters are REMANDED for the following action: 1. Take the necessary steps to obtain records from the DOEHRS, including the October 2, 1990 and May 7, 1991 hearing tests and any other records pertaining to the claims on appeal. Efforts to obtain the records must continue until they are received; unless it is reasonably certain that the records do not exist or that further efforts would be futile. 2. Schedule the Veteran for a VA audiological examination by an appropriate professional to determine the nature and etiology of the claimed hearing loss disability. The entire electronic claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies and is asked to specifically address the following: a. Did the Veteran have a hearing loss disability prior to his entry into military service in September 1990? b. If so, is the evidence clear and unmistakable (undebatable) that such a disorder existed prior to service? (Identify such clear and unmistakable evidence or medical principle that makes it so.) Please provide a description of the symptoms associated with the disability, and discuss whether these symptoms were present, or had manifested at, or close in time, to the Veteran's enlistment. Also, provide an opinion as to whether the evidence is clear and unmistakable (undebatable) that the preexisting bilateral hearing loss disability did not undergo an increase in severity during the Veteran's period of service. If there was an increase, state whether the evidence is clear and unmistakable (undebatable) that the increase in severity during service was due to the natural progress of the condition. c. If not, is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosed hearing loss had its onset during, or is otherwise related to, the Veteran's active service. In rendering the opinion, the examiner must consider the Veteran's lay statements regarding his in-service noise exposure. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. Schedule the Veteran for a VA psychiatric examination to determine the current nature and etiology of any current acquired psychiatric disorder. The entire electronic claim file must be reviewed by the examiner. The examiner should identify all psychiatric pathology present, conducting any indicated tests and studies. Following a review of the record and examination of the Veteran, the examiner should list all psychiatric disabilities for which the Veteran meets the criteria for a diagnosis, or met the criteria for a diagnosis at any point during the course of the appeal. PTSD should be specifically ruled in or ruled out. For each diagnosed psychiatric disability, to include any that may have resolved during the appeals period, the examiner should state whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the diagnosed acquired psychiatric disability had its onset during or is otherwise related to the Veteran's active duty service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Forward the claims folder to the January 2017 VA examiner who provided a medical opinion as to the etiology of the Veteran's headache disability. If the VA examiner is not available, forward the Veteran's claims folder to another appropriate medical professional. The VA examiner is requested to review all pertinent records associated with the claims folder, including the Veteran's service treatment records, post-service medical records, and lay statements. If the VA examiner determines that another examination is needed, the Veteran should be scheduled for a new examination. Based on the review of the Veteran's claims file, the examiner is asked to opine on whether it is at least as likely as not (a probability of 50 percent or greater) that the current headache disability had its onset during, or is otherwise related to, the Veteran's active service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, Anna-Lisa M. 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.