Citation Nr: 21075089 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-42 915 DATE: December 17, 2021 ORDER The appeal to reopen a claim of entitlement to service connection for tinnitus based on the receipt of new and material evidence is granted. The appeal to reopen a claim of entitlement to service connection for an acquired psychiatric disorder based on the receipt of new and material evidence is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A January 2012 Rating Decision denied November 2010 claims of entitlement to service connection for tinnitus and generalized anxiety disorder with sleep disturbance; the Veteran did not file a timely Notice of Disagreement in response to that decision, nor was new and material evidence received within one year of that decision. 2. Evidence received since the January 2012 Rating Decision relates to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for tinnitus. 3. Evidence received since the January 2012 Rating Decision relates to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder. 4. The evidence is at least in equipoise as to whether the Veteran's tinnitus is causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. The January 2012 Rating Decision denying entitlement to service connection for tinnitus and generalized anxiety disorder with sleep disturbance is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria to reopen the November 2010 claim of entitlement to service connection for tinnitus based on the receipt of new and material evidence is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria to reopen the November 2010 claim of entitlement to service connection for an acquired psychiatric disorder based on new and material evidence is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The criteria for entitlement to service connection for tinnitus loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). On his August 2017 VA Form 9, the Veteran elected to testify at a Board videoconference hearing. He testified at a Board videoconference hearing before a Veterans' Law Judge (VLJ) in December 2019; however, in correspondence dated in February 2021, the Veteran was notified that VA was unable to produce a complete transcript of the December 2019 proceeding due to audio malfunctions in the Digital Audio Recording System (DARS). As such, the Veteran elected to testify at a Board virtual hearing before the undersigned VLJ in July 2021. A transcript of the July 2021 Board virtual hearing is of record. At that hearing, the Veteran waived his right to appear at an additional hearing before a third VLJ and requested that the Board consider his case on the evidence of record. The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. In this case, the Board has reopened the Veteran's previously-denied claims of entitlement to service connection for tinnitus and an acquired psychiatric disorder, as well as granted entitlement to service connection for tinnitus. Since these are the only issues adjudicated herein, with dispositions fully favorable to the Veteran, no further discussion of the adequacy of notice or duty to assist as to these issues is required. 1. New and Material Evidence The Veteran seeks to reopen previously-denied claims of entitlement to service connection for tinnitus and an acquired psychiatric disorder based on the receipt of new and material evidence. Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Tinnitus The Veteran's claim of entitlement to service connection for tinnitus was initially denied in a January 2012 Rating Decision. The Veteran did not file any statement indicating disagreement with the January 2012 Rating Decision and no new and material evidence was physically or constructively received within one year of the determination. Accordingly, the January 2012 Rating Decision is now final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The relevant evidence of record at the time of the January 2012 Rating Decision consisted of service treatment records, service personnel records, VA treatment records dated up until July 2010, and the report of a January 2011 VA Audiology examination. In previously denying the Veteran's claims in January 2012, the RO determined that the available evidence failed to establish that the Veteran's diagnosed tinnitus occurred in or was caused by service. The Veteran filed a petition to reopen the claim in June 2015. Since that time, the Veteran competently testified that he first experienced tinnitus while in service after exposure to acoustic trauma in the form of gunfire, mortar rounds, and loud equipment, and that he continuously experienced tinnitus symptoms since service or shortly thereafter. This newly-received evidence links the Veteran's current tinnitus to in-service acoustic trauma and suggests continuity of symptomatology since service or shortly thereafter. As it relates to an unestablished fact necessary to substantiate the claim, it is material. The credibility of this new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. This claim is addressed on the merits below. Acquired Psychiatric Disorder The Veteran's claim of entitlement to service connection for generalized anxiety disorder with sleep disturbance was initially denied in a January 2012 Rating Decision. The Veteran did not file any statement indicating disagreement with the January 2012 Rating Decision and no new and material evidence was physically or constructively received within one year of the determination. Accordingly, the January 2012 Rating Decision is now final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The relevant evidence of record at the time of the January 2012 Rating Decision consisted of service treatment records, service personnel records, VA treatment records dated up until July 2010, a November 2010 stressor statement, and the report of a January 2011 VA PTSD examination. In previously denying the Veteran's claims in January 2012, the RO determined that the available evidence failed to establish generalized anxiety disorder showing a chronic disability which was incurred during or caused by service. The Veteran filed a petition to reopen the claim in June 2015. Since that time, the Veteran submitted a stressor statement in June 2015 indicating that he was exposed to mortar shelling, small arms fire, and an ammunition dump explosion while station at Long Binh Post, ng Nai, Vietnam. At his July 2021 Board hearing, the Veteran provided additional details about Tan Son Nhut Air Base being attacked as his plane arrived, and about his general fear of being attacked while traveling into Saigon while stationed in Vietnam. This newly-received evidence provides additional details regarding the Veteran's alleged in-service stressors, which could potentially link current psychiatric symptoms to his period of active duty service. As it relates to an unestablished fact necessary to substantiate the claim, it is material. The credibility of this new evidence is presumed. Justus, supra. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. This claim is addressed on the merits in the Remand section below. 2. Service Connection As the Board has reopened the Veteran's claim of entitlement to service connection for tinnitus above, it will now adjudicate the claim on the merits. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system to include tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the record clearly indicates that the Veteran currently suffers from ringing in in his ears. His January 2011 VA Audiological examination report indicated that the Veteran reported high-pitched ringing in both ears. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the first Shedden element has been met. Further, the record contains competent evidence of an in-service event. The Veteran's service records indicate that he served as an Ordinance Supply Specialist while service with the 14th Inventory Control Center (ICC) in the Republic of Vietnam, which is indicative of a high probability of noise exposure. The Veteran specifically reported in-service acoustic trauma in the form of gunfire, mortar rounds, and loud equipment, which is consistent with his service in the Republic of Vietnam. As such, in-service noise exposure is conceded, and the second Shedden element has been met. Finally, the record contains competent evidence of a nexus between the Veteran's tinnitus and service. The Veteran reported that he first noticed his tinnitus within a year of separation from service, but that it probably went unnoticed before then because of the stress and responsibility associated with active duty. A veteran is competent to report that which he can perceive through his senses, including in-service noise exposure and tinnitus. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board also finds him to be credible in this regard, as there is no objective evidence which contradicts such finding. Although the Veteran indicated that he did not have ear trouble on his December 1968 Report of Medical History at separation from service, he later testified that he first noticed his tinnitus within a year of separation from service and that it probably went unnoticed before then because of the stress and responsibility associated with active duty. As such, the Veteran's competent and credible testimony meets the nexus criteria set forth in 38 C.F.R. § 3.303 (d), as it indicates that his tinnitus had its initial onset during service or within one year of service separation, and has continued ever since. The Court of Appeals for Veteran's Claims held that tinnitus is an organic disease of the nervous system under 38 C.F.R. § 3.309 and therefore, service-connection may be granted upon competent and credible evidence of continuity of symptomatology. See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board acknowledges that the January 2011 VA audiologist opined that the Veteran's diagnosed tinnitus was less likely than not caused by or a result of military service based upon there being no direct link between tinnitus onset and time spent in military service. In support of this conclusion, the VA audiologist explained that, "There was no mention of a tinnitus complaint found in service medical records." The Board notes that the VA audiologist's negative nexus opinion appears to be based largely on the lack of tinnitus documented in his service treatment records, coupled with the Veteran's apparent inability at the time of the examination to specify exactly when his tinnitus had its initial onset. However, as indicated above, the Veteran has since specified that his tinnitus initially had its onset within one year of his separation from service or earlier. As indicated above, the Veteran is competent to identify tinnitus, and there is nothing in the record contradicting his account that he experienced tinnitus within one year after separating from military service and continuously thereafter. Therefore, resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether tinnitus had its onset during active duty or within one year of separation from active duty. As such, service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND As indicated above, the Board has reopened the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. Unfortunately, the Board finds that additional development must be undertaken before this claim can be adjudicated on the merits. At the outset, the Board notes that the most recent VA treatment records associated with the claims file are dated in December 2016, approximately five years ago. These records include periodic psychiatric assessments as part of the Veteran's ongoing primary care treatment through the VA Huntington Healthcare System in Huntington, West Virginia. VA treatment records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Here, as the record suggests that there are outstanding VA treatment records relevant to the claim which have not yet been associated with the claims file, the Board finds that the RO must associate with the record any and all outstanding VA treatment records dated from December 2016 to the present from the VA Huntington Healthcare System. Additionally, the Veteran was last provided with a VA PTSD examination in January 2011. At that time, the Veteran reported two stressors: (1) sleeping in his bunk while stationed at Long Binh Post, ng Nai, Vietnam, in 1968 when a nearby ammunition depot exploded, followed by mortar fire, causing him to fear for his life; and (2) fearing that he would be robbed or stabbed while traveling in Saigon city while on active duty in 1966 and 1967. The examiner concluded that the Veteran did not report symptoms meeting criteria for a diagnosis of PTSD except for some occasional disturbing dreams that impaired sleep from seconds to minutes and did not constitute clinically significant distress as described by the Veteran. Rather, the examiner diagnosed the Veteran as having generalized anxiety disorder, but concluded that, due to the focus of generalized anxiety disorder symptoms on a variety of events and activities, it was less likely as not that the Veteran's generalized anxiety disorder was related to his military service. However, the Veteran alleged additional stressors that were not addressed in the VA examination. In a November 2010 statement (and again at his July 2021 Board hearing) the Veteran indicated that, while serving with the 14th Inventory Control Center in Vietnam from 1966 to 1968, his unit was constantly being shot at while living in compounds within Saigon city, and that Tan Son Nhut Air Base was attacked as his plane arrived in June/July 1966, prompting the plane to circle the base prior to landing. In a June 2015 statement, the Veteran indicated that he experienced mortar shelling, small arms fire, and an ammunition dump explosion while stationed at Long Binh Post, ng Nai, Vietnam in January/February 1968. As such, the Board finds that a remand is required for additional stressor development. In this regard, the RO must attempt to verify all the Veteran's claimed stressors based on the information provided in his statements and hearing testimony. Thereafter, the RO should obtain an etiological opinion from a qualified clinician for all psychiatric disorders that may be present. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from December 2016 to the present from the VA Huntington Healthcare System in Huntington, West Virginia, and all associated outpatient clinics. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, attempt to verify the Veteran's asserted in-service stressors by contacting the appropriate record repositories. Specifically, the Veteran has asserted the following in-service stressors: (a.) sleeping in his bunk while stationed at Long Binh Post, ng Nai, Vietnam, in 1968 when a nearby ammunition depot exploded, followed by mortar fire, causing him to fear for his life (b.) fearing that he would be robbed or stabbed while traveling in Saigon city while on active duty in 1966 and 1967 (at his July 2021 Board hearing, he further testified to his fear that an establishment he frequented in the city would be bombed) (c.) while serving with the 14th Inventory Control Center in Vietnam from 1966 to 1968, his unit was constantly being shot at while living in compounds within Saigon city (at his July 2021 Board hearing, he further testified that he would see tracer ammunition overhead when on the roof of his building) (d.) Tan Son Nhut Air Base was attacked as his plane arrived in June/July 1966, prompting the plane to circle the base prior to landing (e.) experienced mortar shelling, small arms fire, and an ammunition dump explosion while stationed at Long Binh Post, ng Nai, Vietnam in January/February 1968 While stationed in Vietnam, the Veteran served with Headquarters and Headquarters Company, 14th Inventory Control Center. If additional details are needed, then contact the Veteran to request the information. All efforts must be documented and associated with the claims file. Any negative replies must be in writing and the Veteran and his representative notified. 3. After the above development has been completed, provide the Veteran with a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. If the Veteran is diagnosed as having PTSD, then the examiner must explain how the diagnostic criteria are met and opine whether the diagnosis is at least as likely as not (50 percent probability or greater) related to an in-service stressor. If any other acquired psychiatric disorders are diagnosed, then the examiner must opine as to whether each diagnosed disorder is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, then issue a Supplemental Statement of the Case to the Veteran and his representative and allow the appropriate time for response. Then, return the claim to the Board. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.