Citation Nr: 21009106 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-34 846 DATE: February 19, 2021 ORDER The application to reopen a claim of service connection for left ear hearing loss is granted. The application to reopen a claim of service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A May 1996 rating decision denied the Veteran’s claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD); the Veteran did not appeal this decision or submit new and material evidence within one year of its issuance. 2. A September 2004 rating decision denied the Veteran’s claim of service connection for left ear hearing loss (claimed as left ear deafness) and his application to reopen a claim of service connection for an acquired psychiatric disorder (characterized as depression); the Veteran did not appeal this decision or submit new and material evidence within one year of its issuance. 3. Evidence received subsequent to the September 2004 rating decision relates to unestablished facts necessary to substantiate the Veteran’s claims of service connection for left ear hearing loss and an acquired psychiatric disorder. 4. The Veteran’s major depressive disorder had its onset in service. CONCLUSIONS OF LAW 1. The May 1996 and September 2004 rating decisions that denied the Veteran’s claims of service connection for left ear hearing loss and an acquired psychiatric disorder are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a)-(b), 19.52(a), 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for major depressive disorder are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1951 to February 1954. These matters come before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision. Informal hearing conferences with a Decision Review Officer (DRO) were conducted in August 2018 and August 2019 in lieu of a formal hearing and reports of those conferences are associated with the Veteran’s claims file. The Board notes that in his November 2019 substantive appeal (VA Form 9), the Veteran requested to testify at a Board hearing before a Veterans Law Judge. In a September 2020 correspondence, however, the Veteran, through his attorney, withdrew his request for a Board hearing. As a final preliminary matter, the Board points out that some of the Veteran’s service records are unavailable and may have been burned in a fire. In cases where service records are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claims has been undertaken with these heightened duties in mind. I. New and Material Evidence Generally, an agency of original jurisdiction (AOJ) decision denying a claim which has become final may not thereafter be readjudicated and allowed. 38 U.S.C. § 7105 (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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative nor redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of any AOJ determination, the Board must address the question of whether new and material evidence to reopen previously claims has been received because the matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Left Ear Hearing Loss In a September 2004 rating decision, the AOJ denied service connection for left ear hearing loss (claimed as left ear deafness) on the basis of a nexus opinion concluding that the condition was more likely due to genetics or to post-service noise exposure than to any noise exposure sustained in service. The Veteran did not file a notice of disagreement within one year of the September 2004 rating decision and new and material evidence was not received within that year. Accordingly, the decision became final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. In May 2017, the Veteran filed an application to reopen his previously denied claim of service connection for left ear hearing loss. In the October 2017 rating decision, the AOJ concluded that the Veteran had submitted evidence sufficient to warrant reopening of the claim, but denied the claim on the merits. The Veteran disagreed and perfected this appeal. In connection with the Veteran’s May 2017 application to reopen, the Veteran submitted a statement in January 2018 detailing his alleged hazardous noise exposure in service. Specifically, the Veteran noted that his exposure to blast cannons, explosions, and combat caused his hearing loss which severely worsened over the years. The Board finds such evidence to be new and material evidence under the provisions of 38 C.F.R. § 3.156, insofar as it relates to the in-service element of service connection and speaks to a continuity of symptoms since service. Although the Veteran appears to have undergone a VA examination in September 2004, it does not appear that these statements were considered, and therefore they were not of record at the time of the September 2004 denial. The evidence is, therefore, new and material, and the claim of service connection for left ear hearing loss is reopened. Acquired Psychiatric Disorder (to include PTSD) In a May 1996 rating decision, the AOJ denied the Veteran’s claim of service connection for an acquired psychiatric disorder, to include PTSD, on the basis that there was no medical evidence of any PTSD related to a stressor in service and that his other diagnosed psychiatric disability was not incurred in or caused by service. The Veteran did not file a notice of disagreement within one year of the May 1996 rating decision and new and material evidence was not received within that year. Accordingly, the decision became final. Id. In June 2004, the Veteran filed an application to reopen his previously denied claim of service connection for an acquired psychiatric disorder. In a September 2004 rating decision, the AOJ denied service connection for depression, previously claimed as an acquired psychiatric disorder, on the basis that the Veteran did not have a psychiatric condition that was related to service. The Veteran did not file a notice of disagreement within one year of the September 2004 rating decision and new and material evidence was not received within that year. Accordingly, the decision became final. Id. In May 2017, the Veteran filed an application to reopen his previously denied claim of service connection for depression. In the October 2017 rating decision, the AOJ continued the denial of the claim. The Veteran disagreed and perfected this appeal. In connection with the Veteran’s May 2017 application to reopen, the Veteran underwent a VA examination in July 2017 where a VA examiner diagnosed major depressive disorder and related the condition to service. The Board finds such evidence to be new and material evidence under the provisions of 38 C.F.R. § 3.156, insofar as it is positive nexus evidence that was not of record at the time of the September 2004 denial. The evidence is, therefore, new and material, and the claim of service connection for an acquired psychiatric disorder (to include PTSD) is reopened. II. Service Connection The Veteran contends that his diagnosed major depressive disorder is related to various stressor events experienced in service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, the Board notes that the Veteran has reported a history of depression prior to service. The Board points out, however, that a veteran 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304 (b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When a claimant was not examined on entrance into a particular period of service, the presumption of soundness does not attach. See Crowe, 7 Vet. App. at 245. However, it is presumed that prior to any period of active duty service that an entrance examination was furnished, and the presumption of soundness applies even in cases where the entrance examination report was lost or missing in VA custody. Quirin v. Shinseki, 22 Vet. App. 390, 396, n. 5 (2009). As explained above, the majority of the Veteran’s service treatment records are presumed to have been destroyed in a fire. Thus, even though the Veteran’s entrance examination report is missing here, he is presumed sound prior to his entry into active service. Although the Veteran is certainly competent to report a history of psychiatric problems prior to service, a veteran’s report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing psychiatric disability prior to service. Therefore, the Board finds that the evidence is not clear and unmistakable that any psychiatric disability pre-existed service and was not aggravated in service and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. The report of a July 2017 VA examination indicates a diagnosis of major depressive disorder. As noted above, some of the Veteran’s service records were lost to a fire. Available service treatment records show that his March 1954 separation examination reflects a normal psychiatric clinical evaluation. The physician’s notes reflect that the Veteran had frequent nightmares and depression as a civilian and was “nervous” prior to entry into service. The examiner who conducted the July 2017 VA psychiatric examination indicated that the Veteran’s psychiatric disability was at least as likely as not related to the Veteran’s in-service stressors. By way of rationale, the examiner reasoned that there was contradictory information regarding whether depression existed prior to service, however, based on the Veteran’s statements, it was clear that his depression worsened after he left service and continued to worsen over time. The Veteran related his depression to incidents in service in Korea, and the VA examiner considered the Veteran’s lay statements in offering a positive nexus opinion. The July 2017 opinion is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, the July 2017 opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There is no medical evidence contrary to the findings of the VA examiner. Accordingly, the Board finds that the Veteran’s current major depressive disorder is related to service and service connection is warranted on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that the benefit granted herein is service connection for major depressive disorder, although the psychiatric issue on appeal was previously characterized as also encompassing a claim of service connection for PTSD. Nevertheless, given that there is no evidence to distinguish between all of the symptoms of the Veteran’s psychiatric disabilities, a separate decision as to entitlement to service connection for psychiatric disability other than major depressive disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Therefore, in applying the benefit of the doubt doctrine, all the Veteran’s psychiatric symptoms must, therefore, be attributed to his now service-connected major depressive disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). REASONS FOR REMAND The evidence of record indicates that the Veteran failed to report to a VA audiological examination scheduled in August 2017. At the August 2018 DRO conference, the Veteran’s attorney requested that VA re-schedule the Veteran’s hearing loss examination. An August 2019 deferred rating decision indicates that a hearing loss examination was scheduled, and an October 2019 statement of the case indicates that the Veteran declined to appear for an examination that was scheduled in September 2019. The Board notes that the evidence of record does not include any letters or report of contact with the Veteran to document and/or confirm that the Veteran was notified of the VA examination scheduled in September 2019, nor is there any communication from the Veteran indicating that he declined the examination. As there is no documentation associated with the claims file reflecting that the Veteran was notified of the September 2019 rescheduled examination and the evidence is otherwise insufficient to determine whether he experiences current bilateral hearing loss disability (as defined by VA) that is related to service, the Board finds that an additional attempt should be made to afford the Veteran with an examination. Notice to the Veteran of the scheduled examination must be documented in the claims file. The Veteran is advised that the consequences of a failure to report for a VA examination without good cause may include his claim being decided, and possibly denied, based on the evidence of record pursuant to 38 C.F.R. § 3.655(b). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Huntington Vista electronic records system and are dated to December 2018. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for hearing loss, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for hearing loss from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Huntington Vista electronic records system for the period since December 2018; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination by an appropriate clinician for his claimed bilateral hearing loss. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The clinician must review the claims file, and then respond to the following: Is it at least as likely as not (50 percent or greater probability) that any hearing loss experienced by the Veteran since approximately May 2017 (1) had its onset in service; (2) manifested within one year after discharge from service; or (3) is otherwise related to an in-service injury or disease, to include the Veteran’s in-service hazardous noise exposure and the left ear hearing loss documented on the report of his examination for separation from service? For purposes of the above opinion, the clinician shall presume that the Veteran’s reports of noise exposure and any hearing impairment in service are accurate. The clinician must consider the Veteran’s lay statements as to in-service noise exposure and onset of his hearing loss and include a thorough medical rationale for any conclusions reached. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Johnson, Polly 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.