Citation Nr: 21073593 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-33 052 DATE: December 9, 2021 ORDER The request to reopen a previously denied claim for service connection for an acquired psychiatric disorder is denied. The request to reopen a previously denied claim for service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Service connection for tinnitus is remanded. Service connection for bilateral hearing loss is remanded. Service connection for degenerative arthritis of the right arm, left arm, right leg, left leg, and spine is remanded. FINDINGS OF FACT 1. Service connection for an acquired psychiatric disorder was denied in a final June 2009 rating decision, and evidence received since then does not relate to a previously unestablished element of the claim. 2. Service connection for COPD was denied in a final June 2009 rating decision, and evidence received since then does not relate to a previously unestablished element of the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria for reopening the claim for service connection for COPD have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision. Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the old disposition reviewed. 38 U.S.C. § 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 can be neither cumulative nor redundant of the evidence of record at the time of the last 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Historically, the Veteran was first denied service connection for an acquired psychiatric disorder and COPD in a June 2009 rating decision. The basis of that denial was that there was no evidence linking the Veteran's acquired psychiatric disorder or COPD to his service. The Veteran filed a Notice of Disagreement in July 2009 and a Statement of the Case was issued in November 2009. The Veteran did not submit an Appeal to the Board (VA Form 9) in response to the Statement of the Case and therefore the June 2009 rating decision is final. Since the June 2009 decision, additional evidence has been received. However, none of this evidence is material because it does not establish a link between the Veteran's service and his current claimed acquired psychiatric disorder or COPD. The evidence received since the final rating decision, including VA medical records, show treatment for the Veteran's claimed conditions, however, there is no evidence linking these disabilities to military service. Therefore, the claims are not reopened. REASONS FOR REMAND Hearing Loss and Tinnitus The Veteran has not been afforded VA examinations. Although the RO submitted an examination request and attempted to schedule the Veteran for a VA examination, the record indicates that the Veteran failed to appear for the scheduled examinations. The Veteran subsequently submitted a statement that he was not provided adequate notice that the examinations were, in fact, scheduled. There is no indication that the RO tried to reschedule the Veteran's examinations in light of the Veteran's statement. Therefore, the Board finds the Veteran has shown good cause for missing the scheduled examination. Further, the Board finds that the RO did not adequately fulfill its duty to assist the Veteran with scheduling him for a VA examination. 38 C.F.R. § 3.159(c)(4). Degenerative Arthritis of the Right Arm, Left Arm, Right Leg, Left Leg and Spine As stated previously, the Veteran has not been afforded VA examinations and medical opinions to determine the nature and etiology of his degenerative arthritis of the bilateral arms, bilateral legs, and spine. Therefore, the Board finds that remand is warranted to obtain a VA examination and medical opinion. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and likely etiology of his bilateral hearing loss and tinnitus. The claims file and all pertinent records must be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss and tinnitus had onset in service or within one year following separation from service or was causally related to service. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure), including any service treatment records or military personnel file records which may have been made a part of the evidence of record and the Veteran's lay assertions, including the onset of his claimed tinnitus in service, should be considered in giving this opinion. It is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran's hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the Veteran's service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 2. Schedule a VA examination to determine the etiology of the Veteran's degenerative arthritis of his bilateral arms, bilateral legs, and spine. All indicated tests and studies should be performed. After reviewing the file, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's degenerative arthritis of the bilateral arms, bilateral legs, and spine is related to the Veteran's military service. The rationale for each opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.