Citation Nr: 21069713 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-39 650 DATE: November 19, 2021 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression and posttraumatic stress disorder is reopened. New and material evidence not having been received, the Veteran's claim for entitlement to service connection for hepatitis C is not reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety and PTSD is remanded. Entitlement to service connection for degenerative disc disease and internal disc disruption status post fusion L4-5 and L5-S1 is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2006 rating decision denied the Veteran's claim of entitlement to service connection for depression and anxiety. The Veteran was notified of that decision and did not appeal or submit new and material evidence within one year of that rating decision. 2. The evidence received since the September 2006 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression, and PTSD. 3. A September 2006 rating decision denied the Veteran's claim of entitlement to service connection for hepatitis C. The Veteran was notified of that decision and did not appeal or submit new and material evidence within one year of that rating decision. 4. The evidence received since the September 2006 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim or raise the reasonable possibility of substantiating the claim for entitlement to service connection for hepatitis C. CONCLUSIONS OF LAW 1. The September 2006 rating decision denying the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder including anxiety and depression is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The additional evidence received since the September 2006 rating decision is considered new and material; the claim for entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety and PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The September 2006 rating decision denying the Veteran's claim for entitlement to service connection for hepatitis C is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103. 4. The additional evidence received since the September 2006 rating decision denying entitlement to service connection for hepatitis C is not new and material; the claim for entitlement to service connection for hepatitis C is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before a Decision Review Officer (DRO) in May 2015. A copy of the transcript is included in the record. The Veteran was scheduled for Board hearings in June 2019 and July 2021 but did not report and offered no good cause to reschedule. REOPENING Legal Criteria To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis 1. Whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD due to military sexual trauma. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the appellant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has recharacterized the psychiatric claim on appeal to entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD). The Veteran's claim for entitlement to service connection for anxiety and depression was initially denied in an October 1994 rating decision based on no evidence of anxiety or depression due to a disease or injury incurred in service. The Veteran filed a new claim in October 2005. A March 2006 rating decision denied the claim based on no new and material evidence. The Veteran filed a new claim for service connection for mental issues in May 2006. A September 2006 rating decision denied the Veteran's claim based on no new and material evidence. The Veteran did not appeal this denial and no new and material evidence was received within one year of the rating decision. The Veteran filed the current claim in June 2014 for entitlement to service connection for post traumatic stress disorder due to military sexual trauma, depression, and anxiety. Following an October 2014 rating decision which denied his claim the Veteran perfected his appeal with a timely filed form 9 in August 2016. Since the September 2006 prior final rating decision which denied the Veteran's claim new evidence, including VA treatment records and a VA examination for PTSD have been added to the record. This evidence is new, material, and raises the reasonable possibility of substantiating the Veteran's claims. As such, the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression, and PTSD due to military sexual trauma is reopened. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hepatitis C. The Veteran's claim for entitlement to service connection for hepatitis C was initially denied in a September 2006 rating decision, based on no evidence that hepatitis was diagnosed in service, was not diagnosed within one year of separation from service and is not due to any experience or event in service. This rating decision is final because the Veteran did not appeal the decision, and no new and material evidence was received within one year of the rating decision. The Veteran filed the current claim in June 2014, for entitlement to service connection for hepatitis C. Following an October 2014 rating decision which denied his claim the Veteran perfected his appeal with a timely filed form 9 in August 2016. Although additional evidence has been received since the September 2006 rating decision, this evidence is not material. Evidence received since the September 2006 rating decision include VA treatment records and a VA examination for hepatitis. VA treatment records continue to note a diagnosis of hepatitis C. This evidence is not material because evidence present in the record at the time of the September 2006 rating decision already established a current disability of hepatitis C. While the July 2016 VA examination for hepatitis C is new, the examiner does not opine a positive etiology between the Veteran's hepatitis and his military service. Overall, the record does not contain any new or material evidence which raises the reasonable possibility of substantiating the Veteran's claim. As such, the claim for entitlement to service connection for hepatitis C is not reopened. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and PTSD is granted. The Veteran contends that he is entitled to service connection for anxiety, depression, and PTSD due to military sexual trauma. The Veteran contends that he was sexually assaulted in service in December 1972 and has suffered from mental health issues since that time. Remand is warranted for a new VA examination. The Veteran was afforded a VA examination in July 2016 however the examination is inadequate. The examiner noted a diagnosis of PTSD that meets the criteria for DSM-5, he also noted a diagnosis of major depressive disorder, substance use disorder in part remission and unspecified insomnia disorder. In his opinion, the examiner noted that the Veteran's condition began prior to military service but was exacerbated by the sexual assault and made worse by his use of alcohol as an attempt to deal with the pain related to the assault. He further asserted that none of this is related to the Veteran's duties while in military service, even though they happened while in military service. The opinion is inadequate, contradictory, and not in line with VA law which notes that service connection may be granted for a current disability which incurred in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, the record does not establish that the Veteran's disability pre-existed service and the examiner does not determine whether there was clear and unmistakable evidence that the disability pre-existed service. Remand is warranted for a new VA examination. 4. Entitlement to service connection for degenerative disc disease and internal disc disruption status post fusion L4-5 and L5-S1 is remanded. Remand is warranted for a VA examination for the Veteran's lumbar spine. The record establishes that the Veteran has a current disability of internal disc disruption status post fusion L4-5 and L5-S1. Additionally, service treatment records note complaints of back pain in service. The Veteran was afforded a general VA examination in October 2014 where he reported a back disability. However, the Veteran has not been afforded a VA examination specifically for his back disability and the record does not contain an opinion as to the whether the Veteran's back disability is related to service. As there is evidence of a current disability and an in-service injury, remand is warranted for an opinion as to whether the Veteran's back disability is related to military service. 5. Entitlement to service connection for bilateral hearing loss is remanded. Remand is warranted for an adequate VA examination. The Veteran was afforded a VA examination in October 2014. Audiometric findings or speech discrimination scores were not provided, and the examiner noted that the examination was inconclusive regarding the possible presence of a disabling degree of hearing loss bilaterally. As the examination is inadequate, remand is warranted for a new exam. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Schedule the Veteran for an in-person psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). The examiner is asked to address the following: (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b) The examiner must opine whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that markers indicate that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. (c) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. (d) Did the Veteran's acquired psych disorder clearly and unmistakably (undebatable) preexist the Veteran's service? (e) If the examiner finds that the Veteran's acquired psychiatric disorder did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? 3. Schedule the Veteran for a VA examination for his lumbar spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's lumbar spine disability at least as likely as not related to service to include the Veteran's claims of back pain in service? Provide a rationale to support the opinion(s). The Veteran is to be presumed credible for the limited purposes of this examination. 4. Schedule the Veteran for a VA examination with an appropriate clinician for his bilateral hearing loss disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Provide audiometric findings for the bilateral ear at 500 hertz, 1000 hertz, 2000 hertz, 3000 hertz and 4000 hertz. (b) Provide speech discrimination scores (c) If the Veteran has hearing loss for VA purposes, is the hearing loss at least as likely as related to service? Provide a rationale to support the opinion(s). The Veteran is to be presumed credible for the limited purposes of this examination. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.