Citation Nr: 21074210 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-26 255 DATE: December 14, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The September 2014 rating decision that denied entitlement to service connection for PTSD was not timely appealed and became final. 2. Evidence received since the September 2014 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2014 rating decision that denied entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the September 2014 rating decision is new and material and the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. 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 September 1982 to June 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board notes that the Veteran is represented by a private attorney. However, the Veteran's attorney was not present at the August 2021 hearing though the Veteran elected to proceed and testify without representation. New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.202, 20.203. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD The last prior final denial for the claim for service connection for PTSD was a September 2014 rating decision. It is final because the Veteran did not submit a notice of disagreement within one year of notification of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Therefore, the Board looks to the evidence submitted since September 2014 for new and material evidence. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge, 155 F.3d at 1356. In the September 2014 rating decision, the RO denied the Veteran's claim for PTSD because he was not shown by the evidence of record to have a current diagnosis of PTSD. Evidence received since September 2014 includes the Veteran's VA treatment records, which show that the Veteran has been diagnosed with, and currently receives treatment for, PTSD. As this evidence was not of record at the time of the September 2014 denial and it relates to an unestablished fact necessary to substantiate the Veteran's claim, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for PTSD is reopened. To this extent only, the claim is granted. Accordingly, the claim for entitlement to service connection for PTSD, herein recharacterized as an acquired psychiatric disorder, to include PTSD, is reopened. REASONS FOR REMAND Although further delay is regrettable, the Board finds that the issues on appeal require additional development prior to appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. As an initial matter, the Board notes that subsequent to the most recent statement of the case (SOC) issued in July 2019, additional VA treatment records were associated with the claims file that are pertinent to the Veteran's service connection claim for an acquired psychiatric disorder. However, the RO did not issue an SSOC as required by 38 C.F.R. §§ 19.31, 19.37. As such, the Board finds that remand is required for the RO to readjudicate the claim, with specific consideration of any additional evidence received since the July 2019 SOC. Notwithstanding the need for an SSOC, the Board also finds that the Veteran's claim requires additional evidentiary development prior to appellate review. The Board notes that, although the Veteran claimed entitlement to service connection for PTSD alone, the medical evidence of record indicates that the Veteran has current diagnoses of PTSD, anxiety, a psychotic disorder, a delusional disorder, and an alcohol abuse disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a psychiatric disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In light of the holding in Clemons, the Board has expanded the scope of the Veteran's service connection claim to include all currently diagnosed acquired psychiatric disorders. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, which he contends is related to several traumatic events he experienced during service while stationed in Germany, including witnessing a fellow service member lose his fingers after they were caught in a tank door, participating in post war simulated battlefield conditions, a fight with German soldier, and preparing tank readiness to engage in possible war with Russia. VA has not been able to verify the Veteran's reported stressors. At the Veteran's August 2021 hearing before the undersigned VLJ, the Veteran further described experiencing hallucinations while in service, stating that he heard voices of people who had previously died in Germany's Black Forest. Service treatment records do not show that the Veteran received treatment for or was diagnosed with an acquired psychiatric disorder during service. However, military personnel records show that in March and April 1983, the Veteran received counseling after going AWOL. During counseling, the Veteran expressed a desire to be discharged, feeling that if he stayed in service he might "lose it". A military official recommended the Veteran for early discharge due to concerns that the Veteran's "personal problems" would prevent him from adequately performing his duties. To date, the Veteran has not been afforded a VA examination with respect to his claim for an acquired psychiatric disorder. The Board finds that remand is necessary to afford the Veteran a VA examination and medical opinion before the Board can render an informed decision on the Veteran's claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to a compensable rating for bilateral hearing loss is remanded. At the August 2021 Board hearing, the Veteran testified that his bilateral hearing loss has worsened in severity since his last VA examination. The Veteran last underwent a VA audiology examination in April 2017. The Board notes that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. Therefore, remand is warranted to afford the Veteran a new examination to assess the current severity of his bilateral hearing loss disability. See 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental health conditions examination with the appropriate medical professional to determine the nature and etiology of any currently-diagnosed psychiatric disorder, to include PTSD. The entire claims file must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Set forth all currently-diagnosed psychiatric disorders, including those diagnosed during the pendency of the appeal, even if currently resolved. (b) If the examiner finds that a diagnosis of PTSD is warranted, is it at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is related to his claimed in-service stressor(s), or otherwise related to any other in-service event? (c) The examiner is also requested to opine whether it is at least as likely as not (50 percent probability or greater) that any other currently-diagnosed psychiatric disorder was incurred in or caused by an in-service injury, illness, or event? In answering the foregoing, the examiner must specifically consider and discuss the April 1983 counseling record where a military official reported the Veteran stating he feared he might "lose" it, finding the Veteran's "personal problems" would prevent him from adequately performing his duties. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. 2. Schedule the Veteran for a VA audiology examination with a qualified audiologist to determine the current severity of his bilateral hearing loss. The examiner must review the Veteran's claims file, to include a copy of this REMAND, and that review must be noted in the examination report. Thereafter, the examiner is asked to: (a) identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz, and the resultant average; (b) administer a Maryland CNC Test to determine speech recognition ability; (c) describe the effects of the Veteran's bilateral hearing loss on his occupational functioning and activities of daily life. The examiner should set forth all examination findings and provide a complete medical rationale for any conclusions reached. A copy of the notice letter sent to the Veteran at his current address of record informing him of the date, time and place of the schedule VA examination should be associated with the file. 3. Then, readjudicate the Veteran's claims with consideration of all the evidence associated with the claims file since the issuance of the July 2019 SOC. If any benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response before returning the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.