Citation Nr: 21009533 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-11 041 DATE: February 22, 2021 ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disability is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include contaminated water exposure at Camp Lejeune, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a final rating decision issued in November 1994, service connection for an acquired psychiatric disability, claimed as a nervous condition, was denied. 2. Evidence added to the record since the final November 1994 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The November 1994 rating decision that denied service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to April 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January and April 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran, through his representative, submitted additional evidence after issuance of the January 2020 statement of the case, a waiver of Agency of Original Jurisdiction (AOJ) consideration is not necessary as the substantive appeal was after February 2, 2013; the Veteran also submitted a waiver of AOJ consideration in April 2020. Additionally, the Board has recharacterized the Veteran’s mental health disability claim to include any psychiatric disorders that have been diagnosed, particularly depressive disorder, dysthymic disorder, and personality disorder. Thus, the claim has been characterized as an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). During the appeal, the Veteran’s attorney appears to raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The Board notes that service connection is not in effect for any disability at this time. As such, no action will be taken in this regard. The Veteran is free to apply for such benefits if he desires. New and material evidence As a threshold issue, service connection for a mental health disability, adjudicated as a nervous condition, was denied in a November 1994 rating decision. The Veteran was informed of the decision and of the right to appeal. As he did not appeal or submit new and material evidence within one year of notification, that decision is final. However, 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 evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 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). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. Since the November 1994 rating decision, additional evidence, to specifically include the Veteran’s service treatment records and VA treatment records, have been associated with the claims file. The additional evidence is new and material as it was not previously submitted to the RO and raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Therefore, the claim of entitlement to service connection for an acquired psychiatric disability reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include contaminated water exposure at Camp Lejeune. The Veteran contends that his psychiatric disability is due to his military service, to include as a result of neurological and neurobehavioral issues caused by contaminated drinking water at Camp Lejeune. See January 2019 notice of disagreement. The Veteran’s VA treatment records indicate that he has been diagnosed with numerous mental health disabilities, to include depressive disorder, dysthymic disorder, and personality disorder. The Veteran has also been reported to have cocaine and alcohol use disorders. While the Veteran was afforded a VA examination in November 1993 and August 1999, such examiners did not provide a nexus opinion or diagnoses using the DSM-V criteria and the Veteran’s psychiatric disability likely changed over the last 20 years. Accordingly, a remand is necessary in order to determine the nature of the Veteran’s psychiatric disability and whether such disability is related to the Veteran’s military service. 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has a bilateral hearing loss disability due to his active military service. While the Veteran was afforded a VA examination in April 2018, the audiometric results were “not adequate for rating purposes.” Using the Maryland CNC word list, the Veteran’s speech discrimination score for his right ear was 100 percent and his left ear was 96 percent. Nevertheless, the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Accordingly, a remand is necessary in order to clarify whether the Veteran has a bilateral hearing loss disability for VA purposes. Additionally, in providing a negative nexus opinion, the April 2018 VA examiner relied entirely on the absence of contemporaneous medical records and did not consider the Veteran’s lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination is inadequate where the examiner did not comment on Veteran’s report of an in-service injury and instead relied solely on the absence of evidence in service medical records to provide negative opinion). As such, a remand is necessary to obtain a VA examination to determine the nature and etiology of the Veteran’s bilateral hearing loss disability. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records. Further, provide the Veteran the opportunity to request that VA obtain any additional private treatment records not currently associated with the claims file. 2. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any mental health disability. The claims file, to include a copy of this Remand, should be reviewed by the examiner. (a.) The examiner is asked to address whether it is at least as likely as not (50 percent probability or greater) that any such acquired psychiatric disability was incurred during or is otherwise related to the Veteran’s active duty service. In providing their opinion, the examiner should specifically address the Veteran’s contention that TCE and PCE in the water at Camp Lejeune can cause neurological and neurobehavioral issues similar to those experienced by the Veteran, as referenced in his January 2019 Notice of Disagreement. 3. Schedule the Veteran for an audiological examination with a qualified examiner to determine the nature and etiology of any hearing loss. The claims file, to include a copy of this Remand, should be reviewed by the examiner. The examiner should then identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. (a.) The examiner should determine whether the Veteran has hearing loss sufficient to qualify as a disability for VA purposes under 38 C.F.R. § 3.385. (b.) If the Veteran has hearing loss that qualifies as a disability under 38 C.F.R. § 3.385, the examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss had its onset during service or is otherwise related to active military service. In providing their opinion, the examiner should specifically address the Journal of Neuroscience article titled “Acceleration of Age-Related Hearing Loss by Early Noise Exposure,” submitted by the Veteran’s representative in April 2020.   A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.