Citation Nr: 21073216 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-09 167 DATE: December 7, 2021 ORDER New and material evidence having been received, the Veteran's claim of entitlement to service connection for headaches, also known as cephalgia, is reopened. New and material evidence having been received, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition, is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is remanded. Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another person is remanded. Entitlement to SMC based on being permanently housebound by reason of service-connected disability, or a total plus 60 percent disability rating, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REFERRED The issue of entitlement to service connection for headaches and a nervous condition on the basis of clear and unmistakable error (CUE) in the April 1981 rating decision was raised in a motion received in May 2016, with a requested claims form following in October 2016, but these matters have not yet been adjudicated. These issues are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Although the underlying claims of service connection for headaches and an acquired psychiatric disorder have been reopened by this decision and remanded below for further action, this does not negate the AOJ's need to address the matter of CUE raised by the Veteran, because if successful, a grant of service connection based on CUE in a prior rating decision may be entitled to an effective date before any potential grant based on a reopened claim. The Veteran must be afforded his due process in this regard. FINDINGS OF FACT 1. Service connection for headaches and a nervous condition was previously denied in an April 1981 rating decision. The Veteran did not submit new and material evidence, nor otherwise perfect an appeal of this decision following the August 1981 statement of the case or during the allowed one-year period after the rating decision, and the rating decision became final. 2. Evidence submitted since the April 1981 denial is new, and when credibility is presumed solely for the purpose of reopening the claim, raises a reasonable possibility of substantiating the claims of service connection. CONCLUSIONS OF LAW 1. The April 1981 rating decision that denied the Veteran's claims of entitlement to service connection for headaches and a nervous condition is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1980). 2. The criteria have been met for reopening the claims of entitlement to service connection for headaches and an acquired psychiatric condition, previously adjudicated as a nervous condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to February 1967. It is noted that by a July 1984 court order, the Veteran legally changed his name. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2016 and January 2017. The Veteran requested a personal hearing before the Board in his February 2018 substantive appeal. In September 2021, however, through his attorney, he withdrew that request in writing. Therefore, the Board now proceeds with adjudication of the appeal. 38 C.F.R. § 20.704(e). Petition to Reopen Previously Denied Claims Where, as here, a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Veteran's claims of entitlement to service connection for headaches and a nervous condition were last finally denied in April 1981 based upon a finding that headaches pre-existed the Veteran's active service and the available evidence did not show a permanent increase in disability during service, and a diagnosed nervous condition was not shown. The Veteran did not perfect an appeal of this rating decision, nor submit additional evidence within the applicable one-year period, and that rating decision became final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1980). Thus, new and material evidence is now required to reopen these claims. 1. New and material evidence having been received, the claim of entitlement to service connection for headaches is reopened. Through his attorney, the Veteran provided a November 2020 private medical opinion that concluded it is at least as likely as not that the Veteran's current headaches/cephalgia began during his active service and are connected to the headaches documented within his service treatment records. This physician also wrote that the Veteran described at least three or four occasions during service in which he was physically assaulted, after which he experienced worsening of his existing headaches. Private opinion, November 2020. As will be discussed further below in remanding this claim, the November 2020 opinion is inadequate as a basis to grant this appeal because it is based on an inaccurate factual premise stating that the Veteran's headaches did not exist prior to his active service, a fact that is contradicted by the contemporaneous evidence. Nonetheless, the evidence about personal assaults and any potential head injury or worsening of headaches due to those assaults is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claim of service connection, at least in contributing to a more complete picture of the circumstances surrounding the nature of the Veteran's headache condition. See Hodge v. West, 155 F.3d 1356. As new and material evidence has been received, the claim of entitlement to service connection for headaches is reopened, and to this extent only, the appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. As described above, the Veteran's history of being subject to physical assaults during service was not of record at the time of the prior April 1981 rating decision addressing service connection for a "nervous condition." Subsequently, the Veteran has also been diagnosed with one or more mental health conditions. See, e.g., VA treatment record, June-July 2017. This evidence is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claim of service connection for an acquired psychiatric disorder, at least as it contributes to a more complete picture of the circumstances surrounding the nature of the claimed condition. See Hodge v. West, supra. As new and material evidence has been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened, and to this extent only, the appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. VA afforded the Veteran an examination to determine the nature, severity, and etiology of his claimed hearing loss and tinnitus disabilities in July 2016. The examination was performed by Dr. TP, a doctor of audiology, who ultimately reached a negative opinion as to whether the Veteran's hearing loss and tinnitus were attributable to his military service because normal hearing was demonstrated at the time of the Veteran's separation from military service. The Veteran, through his attorney, has since raised a challenge as to this examiner's competency and requested a copy of the examiner's resume, curriculum vitae (CV), lists of her publications, specialties, or other documentation as to her experience and qualifications. See, e.g., Attorney's argument, February 2020; Notice of disagreement, June 2017. VA now has the burden to produce evidence to establish the examiner's competency or explain why the requested evidence cannot be provided. See Francway v. Wilkie, 940 F.3d 1304 (2019). The appeal as to these issues is remanded for the AOJ to assist the Veteran in obtaining the requested information. 3. Entitlement to service connection for headaches, claimed as cephalgia, is remanded. All veterans will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as "noted" at entrance. 38 C.F.R. § 3.304(b). In this case, the new and material evidence added to the claims file in support of the Veteran's claim of service connection for headaches contain an inaccurate factual premise regarding whether the Veteran's headaches pre-existed his military service. Specifically, the medical opinion offered by the Veteran states that he reported he had no significant headaches prior to entering military service and he developed significant headaches diagnosed as cephalgia or migraine headaches "during his time in service." Private opinion, November 2020. These statements are directly contradicted, however, by a Report of Medical History completed by the Veteran in November 1965 as part of a pre-induction physical before he began active service. See Service treatment records. At that time, the Veteran reported having frequent or severe headache with a notation by the physician that added "Headache daily(?) no med consult." Id. However, no medical defect, infirmity, or disorder was then noted upon clinical evaluation when the Veteran was examined and accepted for active service. Report of Medical Examination, November 1965. The Veteran is competent to report headache pain he experienced with his own senses, and his contemporaneous report just before the beginning of his active service began is afforded significant probative weight in establishing the presence of this symptom or condition prior to active service. The Board finds that the Veteran's headaches clearly and unmistakably preexisted his active service, but the Board is not competent to determine if these headaches were a manifestation of an injury or disease that existed prior to service. The record also does not contain clear and unmistakable evidence demonstrating that the Veteran's pre-existing headache condition was not aggravated or worsened by his service. Instead, the Veteran's attorney expressly argues that the condition worsened over the course of the Veteran's active service. See, e.g., Attorney's statement, October 2016. A medical opinion on the matter is needed. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as nervousness or a nervous condition, is remanded. More information is needed to allow the Board to make a fully-informed decision. It is unclear whether the Veteran has a current diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Moreover, no examiner has opined whether any currently diagnosed acquired psychiatric disorder is at least as likely as not related to the physical assaults reported by the Veteran as occurring during his active service. An examination and opinion is needed. 5. Entitlement to SMC based on the regular need for aid and attendance of another person is remanded. 6. Entitlement to SMC based on being permanently housebound by reason of service-connected disability, or a total plus 60 percent disability rating, is remanded. 7. Entitlement to a TDIU rating is remanded. Finally, because entitlement to SMC and/or a TDIU rating are essentially disability rating claims, and the threshold issues of entitlement to service connection are not yet ripe for adjudication but must be determined first, the issues are found to be inextricably intertwined. A remand of the SMC and TDIU claims is necessary, pending the outome of the threshold service connection determinations. The matters are REMANDED for the following action: 1. Obtain and provide to the Veteran and his attorney, if available, a copy of the resume, curriculum vitae, or any other requested and relevant information regarding the professional qualifications of the July 2016 VA audiological examiner. If any requested information is not obtainable, the Veteran and his attorney should be notified, and the reasons for this should be clearly documented in the claims file. 2. Provide the Veteran notice that his claim of service connection for an acquired psychiatric disorder (to include PTSD) based upon in-service personal assaults may be based upon evidence from sources other than his official service records, advise him as to the potential sources of such evidence, and allow him the opportunity to furnish this type of evidence in compliance with 38 C.F.R. § 3.304(f)(5). 3. Schedule the Veteran for a VA examination for his headaches. 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 opinions below. The examiner must review the claims file, but a brief synopsis is included here for the sake of clarity. The Board has determined that the Veteran's headaches clearly and unmistakably preexisted his active service based upon the Veteran's self-report of frequent headaches in November 1965, before his active service began. The Veteran now contends that his headaches worsened during service due to physical assaults that occurred. In the January 1967 Report of Medical History at the time of his separation from military service, however, the Veteran described his headaches as being due to a car accident (which the record reflects occurred before service in May 1964). The examiner's opinion is requested as to the nature, etiology, and progression or worsening (if any) of the Veteran's headaches during service. The medical questions below are specifically worded to reach the precise legal determinations that must ultimately be addressed in this appeal; the examiner is asked to respond to each question exactly as it is asked, even where that presents challenges. a. Do the Veteran's frequent or severe headaches, which existed prior to service, clearly and unmistakably demonstrate that a head injury or other disease manifested by headaches existed before his active service? Why or why not? b. If it is clear and unmistakable that a head injury or disease manifested by headaches existed before the Veteran's service, does clear and unmistakable (undebatable) evidence demonstrate that that the injury or disease "was not aggravated by such service." Why or why not? c. If headaches increased during service, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of a disease or injury? Why or why not? d. Regardless of the answers provided to each of the questions above, is a current headache disability at least as likely as not related to the Veteran's active service, including the physical assaults he reports occurred during service? Why or why not? e. In providing the requested opinions, the examiner must consider the contemporaneous evidence of the service treatment records, plus the Veteran's own descriptions of his pre-service car accident, headache symptoms before service, in-service assaults/injuries and any related symptoms, as well as his post-service symptoms. The examiner is asked to consider and describe the medical reasons that the Veteran's reports about his symptoms do or do not align with any described head injuries and how any currently diagnosed headache disability is known to develop. The Board recognizes that the complex and seemingly duplicative or opposing nature of the medical questions asked may be challenging and will require significant work on the part of the medical examiner. Full and thoroughly explained answers to each of the questions above will reduce delays in adjudication and are very much appreciated. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. a. If the Veteran is diagnosed with PTSD, the examiner must opine whether the evidence of record, including the Veteran's lay statements, any statements made by others, and the Veteran's service records, corroborate the claim that a personal assault occurred during active service (38 C.F.R. § 3.304(f)(5)). b. If the examiner finds that evidence indicates 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 currently diagnosed (active at present or any time since October 2016), the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the reported personal assaults during service and the Veteran's documented reports of depression or excessive worry during service. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.