Citation Nr: 21012366 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-44 315 DATE: March 4, 2021 ORDER The claim of entitlement to service connection for a right eye disability is reopened. The claim of entitlement to service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for a disorder manifested by dizziness is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. In a May 2005 rating decision, the VA Regional Office (RO) denied the Veteran’s service connection claim for eye injury, faint corneal scar, right eye. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the May 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for eye injury, faint corneal scar, right eye. 3. In an August 2011 rating decision, the VA Regional Office (RO) denied the Veteran’s service connection claim for bilateral hearing loss. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 4. The evidence received since the August 2011 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The evidence received since the final May 2005 rating decision is new and material, and the claim for entitlement to service connection for eye injury, faint corneal scar, right eye is reopened. 38 U.S.C. § 5108; 38 C.F. R. § 3.156. 2. The evidence received since the final August 2011 rating decision is new and material, and the claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F. R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1981 to August 1985. In October 2018, the Board remanded the Veteran’s service connection claims for a disorder manifested by dizziness; a psychiatric disorder, to include PTSD; and a sleep disorder, to include sleep apnea. The Board finds that there was not substantial compliance with its remand orders. These issues will be addressed further in the remand section of this decision See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the issues of whether new and material evidence has been received to reopen previously denied service connection claims for bilateral hearing loss and eye injury, faint corneal scar, right eye. The Board finds that there was substantial compliance with its remand orders with regard to these claims. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). New and Material Evidence Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). 1. The claim of entitlement to service connection for a right eye disability is reopened. With respect to entitlement to service connection for a right eye disability, to include a right eye injury, faint corneal scar, right eye, the final May 2005 rating decision, the RO acknowledged that the Veteran had a diagnosis of faint corneal scar of the right eye. The claim was denied because the evidence of record did not show that the condition was incurred in or aggravated during his military service. No appeal was taken from this decision, and no relevant evidence was submitted within one year of the decision, and it became final. Since the May 2005 denial, additional evidence has been submitted, including service treatment records (STRs) noting a right eye injury in service in June 1982. The evidence received is new because it was not of record at the time of the final rating decision in May 2005. The evidence is also material as it provides evidence of an in-service incurrence relating his right eye disability to his military service. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating this service connection claim. See Shade, 24 Vet. App. 110. Therefore, the claim of entitlement to service connection for a right eye disability is reopened. 2. Whether new and material evidence has been submitted to reopen the claim entitlement to service connection for bilateral hearing loss. Turning to the Veteran’s claims for entitlement to service connection for bilateral hearing loss. The Veteran’s claim was denied in an August 2011 rating decision because the Veteran did not have hearing loss for VA disability purposes. Evidence added to the record since this decision indicates that the Veteran’s hearing loss has worsened. This evidence is new and material because it was not of record at the time of the final rating decision in August 2011, it also is material because it raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. 110. Therefore, the claim of entitlement to service connection for a bilateral hearing loss is reopened. REASONS FOR REMAND 3. Entitlement to service connection for a disorder manifested by dizziness is remanded; entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded; and entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. A remand is necessary to obtain VA examinations and/or opinions for these issues. With respect to the Veteran’s service connection claim for dizziness, the Veteran contends that he experiences dizziness that is due to his military service. The Board notes that the Veteran’s VA treatment records indicate complaints of dizziness. For instance, according to a May 2013 VA treatment note, the Veteran complained of having episodes of dizziness. With respect to the Veteran’s service connection claim for an acquired psychiatric disorder, the Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that is related to his military service. Specifically, he contends that he has PTSD due to finding his girlfriend dead beside him. See October 2019 VA Form 21-0781, Statement in Support of Claim for PTSD. The Board notes that the Veteran’s VA treatment records include complaints and treatment of depression and other psychiatric symptoms. For instance, in a June 2019 VA note, the Veteran was noted as “positive” for depression. A July 2012 VA psychiatrist also noted that the Veteran has depressive symptoms. In September 2012, the Veteran was referred to participate in a mental health therapy group. With respect to the Veteran’s service connection claim for sleep apnea, the Veteran’s VA treatment records indicate a diagnosis of obstructive sleep apnea. Specifically, in a February 2015 VA followup group note, a sleep apnea clinic noted an assessment of obstructive sleep apnea with hypersomnia. However, the record is not sufficient to decide the claims as there are no medical opinions of record addressing a link to service. As such, the Board finds that the low bar of McClendon v. Nicholson, 20 Vet. App. 79 (2006) has been met, and VA’s duty to assist and provide an examination has been triggered. Therefore, remand is necessary for VA examinations and opinions concerning the etiology of the Veteran’s claimed dizziness and acquired psychiatric disorder. A remand is also necessary to obtain a VA opinion regarding the etiology of the Veteran’s diagnosed sleep apnea. 4. Entitlement to service connection for a right eye injury is remanded. With respect to the Veteran’s service connection claim for a right eye injury, the Veteran contends that he has a right eye injury that is due to getting brake fluid in his eye while in service. See April 2005 VA examination. The Board notes that the Veteran had a diagnosis of faint corneal scar of the right eye and refractive error. See April 2005 VA examination. The Veteran’s STRs reflect an eye injury in June 1982. While STRs in June 1982 and July 1982 note that the injury occurred to the left eye, the provider also noted that he had brake fluid in his eye. The record does not specify whether he had brake fluid in his left eye only or if he also had brake fluid in his right eye. As a VA opinion has not been furnished with respect to the Veteran’s right eye condition, a remand is necessary to obtain a VA opinion regarding the etiology of the Veteran’s right eye injury. 5. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss that is related to his military service. The Veteran reported that he was exposed to acoustic trauma while working in the motor pool in the Army. See August 2010 VA Form 21-4138 Statement in Support of Claim. In June 2011, the Veteran underwent a VA examination for his claimed hearing loss. However, the VA examiner concluded that the Veteran did not have a diagnosis of hearing loss for VA rating purposes. Subsequently, the Veteran has asserted that he has a worsening of his hearing. Thus, a remand is necessary to obtain a new VA examination to determine the current nature and etiology of the Veteran’s claimed bilateral hearing loss. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. 2. DIZZINESS: Schedule the Veteran for a VA examination for any disorder related to dizziness. The examiner must review the claims file. The examiner should identify all disorders related to dizziness present. For each identified disorder, the examiner should render an opinion as to whether it is at least as likely as not (fifty percent or greater probability) related to service. A complete rationale should be provided to support the opinion(s). In providing the requested opinion, the examiner should consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible. 3. PSYCHIATRIC DISORDER: Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder, to include posttraumatic stress disorder (PTSD). The examiner should identify all psychiatric conditions present, to include PTSD. For each identified psychiatric disorder, to include PTSD, the examiner should opine whether it is at least as likely as not (fifty percent or greater probability) that the identified psychiatric condition is related to service or a verified in-service stressor. A complete rationale should be provided to support the opinion(s). 4. SLEEP APNEA: Obtain a VA opinion for the Veteran’s sleep apnea. The examiner must review the claims file. The examiner should provide an opinion as to whether or not the Veteran’s sleep apnea at least as likely as not (fifty percent or greater probability) related to service. A complete rationale should be provided to support the opinion(s). In providing the requested opinion, the examiner should consider the Veteran’s description of any in-service injury or symptoms as well as any post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible. 5. RIGHT EYE INJURY: Obtain a VA opinion for the Veteran’s right eye disability, to include eye injury, faint corneal scar, right eye. The examiner must review the claims file. The examiner should identify any right eye disabilities present, to include a faint corneal scar. For each identified right eye condition, to include faint corneal scar, the examiner should provide an opinion as to whether the condition is at least as likely as not (fifty percent or greater probability) related to service, including the Veteran’s reports that he suffered a right eye injury in June 1982 due to getting brake fluid in his eye. A complete rationale should be provided to support the opinion(s). The examiner is requested to address the Veteran’s STRs which note an eye injury in June 1982. The examiner is also requested to address the Veteran’s lay statements that he injured his right eye in June 1982 due to getting brake fluid in his eye. 6. BILATERAL HEARING LOSS: Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file. Audio testing should be performed to determine the severity of the Veteran’s bilateral hearing loss. The examiner should provide an opinion as to whether it is at least as likely as not (fifty percent or greater probability) that the Veteran’s bilateral hearing loss is related to noise exposure in service. The examiner should also render opinions as to whether it is at least as likely as not that the Veteran’s hearing loss (1) manifested within 1 year after discharge from service, or (2) was noted during service with continuity of the same symptomatology since service. A complete rationale should be provided to support the opinion(s). In providing the requested opinion, the examiner should consider the Veteran’s description of his in-service noise exposure and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible. 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.