Citation Nr: 21066302 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-45 689 DATE: October 29, 2021 ORDER Reopening of a previously denied claim of service connection for right ear hearing loss is granted. Reopening of a previously denied claim of service connection for left ear hearing loss is granted. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for acoustic neuroma is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded FINDINGS OF FACT 1. Service connection for left and right ear hearing loss was most recently denied in an unappealed January 2007 rating decision; there was no nexus between current left ear hearing loss and service, and the right ear did not meet the criteria for a hearing loss disability for VA purposes. 2. Evidence received since January 2007 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses a previously unestablished fact, and raises the reasonable possibility of substantiating the claim. 3. The evidence is insufficient to establish that the Veteran has a current diagnosis of any acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The January 2007 rating decision denying service connection for left and right ear hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for left ear hearing loss have been met. 38 U.S.C. § 5108(a); 38 C.F.R. §§ 3.156(a), 3.385. 3. The criteria for reopening the claim for service connection for right ear hearing loss have been met. 38 U.S.C. § 5108(a); 38 C.F.R. §§ 3.156(a), 3.385. 4. The criteria for service connection for an acquired psychiatric disorder, claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Though the Veteran originally requested a hearing before the Board, in a February 2020 correspondence he withdrew that request. The claim with regard to PTSD has been recharacterized to include all potentially diagnosed acquired psychiatric disorders. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Here, service connection for left and right ear hearing loss was denied in a January 2007 rating decision. The Veteran did not appeal those denials, nor was new and material evidence received within one year of the decision. Accordingly, they became final. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. "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. New and material evidence cannot be cumulative or 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). New and material evidence must "raise a reasonable possibility of substantiating the claim," a "low threshold" that "must be viewed as enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The January 2007 rating decision denied the claim for absence of evidence that the Veteran has right-ear hearing loss that rises to the level of a disability for VA compensation purposes, as set forth in 38 C.F.R. § 3.385. Since that time, the Veteran has competently and credibly reported a general worsening of his subjective hearing. Additionally, VA audiology records from 2010 and 2015 refer to testing showing "normal to moderate" hearing loss on the right, particularly at high frequencies. These allegations and records directly address the basis of the prior denial; while in and of themselves they do not establish a hearing loss disability on the right, they do raise the reasonable possibility of such, and trigger the duty to assist. Reopening of the claim of service connection for right ear hearing loss is warranted. With regard to the left ear, the claim was denied on the basis that no nexus to service was shown; the current hearing loss was more likely than not due to a nonservice-connected acoustic neuroma rather than military noise exposure. Since January 2007, the Veteran has filed a claim of service connection for the acoustic neuroma, alleging that it is due to in-service noise exposure. This new, previously undeveloped allegation triggers VA's duty to assist the Veteran in connection with the new claim, and raises the reasonable possibility od substantiating the claim for the left ear hearing loss, already identified as a residual. Reopening of the previously denied claim is warranted. The Board acknowledges prior records (which were previously considered by the January 2007 rating decision and therefore are not new evidence) reflecting that the Veteran has some degree of hearing loss in his right ear; however, for VA compensation purposes, hearing loss must rise to the degree specified in 38 C.F.R. § 3.385. In order for this claim to be reopened, there must be new evidence relating to establishing that hearing loss in the right ear meets the definition of a disability as set forth in 38 C.F.R. § 3.385. The Board also acknowledges an April 2015 statement from the Veteran stating that he had been offered service connection for hearing loss at a noncompensable rate in the past and that he desires to accept that now. At this time, the Board may consider entitlement to service connection strictly within the scope of the governing law, and under these facts the law does not allow reopening the claim for service connection. Adjudication of the Veteran's claims does not end with the determination that new and material evidence has been received. The matters must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claims. Service Connection for an Acquired Psychiatric Disorder The Veteran seeks service connection for PTSD, based on an allegation of a helicopter crash, or hard landing, in service. As is noted above, the Board has expanded the claim to include any currently diagnosed psychiatric disorder. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires 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 event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires that a diagnosis of PTSD conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). After review of all the evidence, the Board finds that it is insufficient to establish that the Veteran has a current disability of PTSD, or any other acquired psychiatric disorder, in conformance with the DSM-5 diagnostic criteria. A VA examination was provided in October 2015. The Veteran reported that during service "he was in a helicopter crash that made a 'hard landing" while responding to another helicopter crash in which 11 people were injured." When asked about this event, it was noted that the Veteran originally "did not report emotional distress related to this incident." Still, the examiner, "[g]iving the Vet[eran] the benefit of the doubt," found this in-service event sufficient to meet the DSM-5 PTSD criteria for supporting a diagnosis of PTSD. Ultimately, however, the examiner found that the Veteran did not meet all the criteria for a diagnosis of PTSD or any other DSM-5 disorder. It was noted that the Veteran did not report symptoms of hyperarousal, avoidance, or intrusive thoughts related to the stressor, and that since service he never sought treatment for a mental health condition. The examiner remarked, "while [the Veteran] did note a period of time in 1997 involving depressed mood and suicidal ideation following his wife's decision to leave the marriage, these symptoms appear to have resolved since then. He also noted a number of other medical conditions, both chronic and acute, that are a source of irritation and discomfort for him[,] though these do not appear correlated with a clinical mental health disorder at present." Among VA treatment records, the Veteran provided negative answers on PTSD screening tests in November 2006, August 2012, and May 2017. Treatment notes do not mention psychiatric complaints or diagnoses; he is repeatedly noted to psychologically stable. Thus, based on all the evidence of record, the Board finds that there is insufficient evidence to establish that the Veteran has a current disability of PTSD or other acquired psychiatric disorder. The Board acknowledges the Veteran's statements in November 2015 and August 2017 that he believes the examiner did not spend sufficient time discussing "issues related to [the Veteran's] life after [his] service." The Board finds, however, that as to the issue relevant for service connectionthat is, whether the Veteran has any current disability related to an in-service stressor eventthe October 2015 examiner provided a well-reasoned opinion based on an adequate examination of and interview with the Veteran. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Across the treatment records, there is no other evidence sufficient to support that the Veteran has a currently diagnosed psychiatric disorder. Accordingly, without evidence of a current disability, the claim for service connection for an acquired psychiatric disorder, claimed as PTSD, must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (In the absence of proof of a present disability there can be no valid claim.). REASONS FOR REMAND Regarding service connection for acoustic neuroma, the evidence reflects that the Veteran was diagnosed with and underwent surgery for acoustic neuroma around 2000. In a prior VA decision granting service connection for tinnitus, VA found that the Veteran had noise exposure during service when, while driving, he took a wrong turn, ended up driving in the front of a firing artillery line, and "took on the full concu[ssion] of some artillery rounds." The Veteran contends that his acoustic neuroma may also be related to this in-service event. The Veteran has not yet been provided a VA examination, and given this evidence of a diagnosed disability with in-service noise exposure, the Board finds that remand is required to satisfy VA's duty to assist the Veteran by providing a medical examination and opinion. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). Regarding left and right ear hearing loss, the reopening above notes that the duty to assist is triggered. This includes provision of an audiological examination to establish whether there is a current right ear hearing loss disability, and whether any such is caused or aggravated by established in-service acoustic trauma. Moreover, a December 2006 opinion concluded that the condition was more likely due to the Veteran's acoustic neuroma, and that even following surgery there is generally substantial residual hearing loss. Thus, this claim is intertwined with the service connection claim for acoustic neuroma, and as that claim is being remanded, so too will this claim be remanded with it. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Schedule the Veteran for VA examination regarding the nature and etiology of his acoustic neuroma. The claim folder must be reviewed in conjunction with the examination. The examiner must opine whether the left acoustic neuroma it is at least as likely as not caused or aggravated by the Veteran's in-service noise exposure, to include an incident in which he was driving directly in front of an artillery line that fired rounds, and/or exposure to "working with TNT and dynamite on bridge projects" in connection with his MOS as a combat engineer. A full and complete rationale is required for all opinions expressed. 2. Schedule the Veteran for a VA audio examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current hearing loss of the left and right ears, and must opine as to whether it is at least as likely as not caused or aggravated by in-service noise exposure, to include an incident in which he was driving directly in front of an artillery line that fired rounds, and/or exposure to "working with TNT and dynamite on bridge projects" in connection with his MOS as a combat engineer. The examiner must also opine as to whether any currently diagnosed hearing loss is at least as likely as not caused or aggravated by the left acoustic neuroma A full and complete rationale is required for all opinions expressed. 3. Then, readjudicate the matters on appeal. If any benefit sought remains denied, issue a supplemental statement of the case, and, after appropriate time for response, return the matters to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.