Citation Nr: 21012812 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-27 437 DATE: March 5, 2021 ORDER New and material evidence having not been received the application to reopen a claim of service connection for degenerative joint and disc disease of the cervical spine is denied. New and material evidence having been received to reopen a claim of service connection for bilateral hearing loss is granted. New and material evidence having been received the application to reopen a claim of service connection for tinnitus is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Service connection for degenerative joint and disc disease of the cervical spine was last denied by the Regional Office (RO) in a November 2007 rating action. The Veteran was notified of this action and of his appellate rights, but he did not file a timely appeal. 2. Since the November 2007 decision denying service connection for degenerative disc and joint disease of the cervical spine, the additional evidence, not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 3. Service connection for bilateral hearing loss was denied by the RO in a November 2007 rating action. The Veteran was notified of this action and of his appellate rights, but he did not file a timely appeal. 4. Since the November 2007 decision denying service connection for bilateral hearing loss, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 5. Service connection for tinnitus was denied by the RO in a November 2007 rating action. The Veteran was notified of this action and of his appellate rights, but he did not file a timely appeal. 6. Since the November 2007 decision denying service connection for tinnitus, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The additional evidence submitted subsequent to the November 2007 rating decision, which denied service connection for degenerative disc and joint disease, is not new and material; thus, the claim for service connection for this disability is not reopened, and the November 2007 rating decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The additional evidence submitted subsequent to the November 2007 rating decision, which denied service connection for bilateral hearing loss, is new and material; thus, the claim for service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The additional evidence submitted subsequent to the November 2007 rating decision, which denied service connection for tinnitus, is new and material; thus, the claim for service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1962 to May 1966. In January 2021, a video conference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Regarding the question of whether new and material evidence has been received to reopen claims of service connection for hearing loss, tinnitus and degenerative joint and disc disease of the lumbar spine, these must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’d 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. The Board has characterized the Veteran’s claims as to these issues accordingly. Whether new and material evidence has been received to reopen a claim of service connection for degenerative joint and disc disease of the cervical spine Service connection for degenerative joint and disc disease of the cervical spine was denied originally by the RO in May 1968, for failure to report for a VA examination, and again in a November 2007 rating decision. The November 2007 denial was on the basis that the degenerative disc and joint disease of the cervical spine was not found to be related to complaints of neck pain that the Veteran had while on active duty. The Veteran did not appeal or submit new and material evidence within one year of either determination. In such cases, it must first be determined whether new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). The last decision denial on any basis is to be finalized. Evans v. Brown 9 Vet. App. 273 (1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the November 2007 rating decision, which most recently denied service connection for degenerative disc and joint disease of the cervical spine, included service treatment records (STRs) which show that the Veteran sustained a neck injury in May 1963 and had persistent complaints of pain on the right when turning the head to the left. X-ray studies of the cervical spine at that time were negative. In October 1963, an X-ray study reportedly showed a minimal compression fracture at T-1 that was old. The Veteran was treated with intermittent cervical traction and reported to physical therapy for several days, but did not seek further treatment. On follow-up evaluation at the end of October, it was noted that the Veteran continued to have intermittent and mild neck pain and some stiffness in the morning. Examination was not remarkable with full range of motion and no tenderness. Foraminal compression testing was negative. The impression was residuals of neck strain. Local heat and time were recommended. On examination for separation from service in May 1966, clinical evaluation of the spine was normal. Also of record at the time of the November 2007 rating decision was the report from an October 2007 VA examination, in which degenerative joint and disc disease of the cervical spine from C3 to C7 was diagnosed. The Veteran applied to reopen his service connection claim in October 2014. Evidence submitted in connection with this claim includes his testimony before the undersigned in January 2021. At that time, he stated that he injured his cervical spine while diving during service. He also noted that he had had surgery on the cervical spine several years earlier. Also of record is the report from a VA examination in June 2019. At that time, the examiner opined that the Veteran’s cervical spine disorder was less likely than not incurred in or caused by the in-service injury, event, or illness. The rationale for that opinion was based on a review of the record, including the Veteran’s STRs. The examiner noted that there were negative neurological examinations on multiple occasions during service and that neurologic, spine and musculoskeletal systems were normal at separation. The examiner stated that an assessment in service of a cervical strain would not cause cervical spinal stenosis. The examiner also took note of the Veteran’s cervical laminectomy in 2015 with part of C3, C4, C5, C6, and part of C7 for multiple level cervical stenosis. The examiner stated that the T1 compression fracture, noted in the STRs, was not considered to be the cause of cervical spinal stenosis from C3 through C7. The examiner explained that cervical spinal stenosis causes were disc herniation; nondegenerative causes such as an infectious disease process, nerve root infarction, root avulsion, or tumor; or cervical spondylosis including degenerative of the vertebral discs, zygapophyseal, and uncovertebral joints. Review of the record shows that the Veteran did have complaints of cervical spine pain while on active duty and was even noted to have a compression fracture at T1, the first thoracic vertebra. On examination, however, his spine was noted to be normal and the 2007 rating decision found that the symptoms and findings noted during service were not related to the cervical disc and joint disease noted at that time. The Veteran requested that this claim be reopened, but the contentions he has made in support of this request were previously considered in the 2007 rating decision and the evidence received since the 2007 rating decision also continues to demonstrate that the current cervical disc and joint disease are unrelated to the neck injury he sustained while on active duty. The 2019 VA examiner gave specific rationale indicating that neither a T1 compression fracture nor cervical strain would be related to such disc and joint disease. As such, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; new and material evidence is not found and the application to reopen the claim is denied. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss and tinnitus Service connection for bilateral hearing loss and tinnitus was denied originally by the RO in a November 2007 rating decision. The Veteran did not appeal or submit new and material evidence within one year of this determination. As with the cervical spine disability, it must first be determined whether new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio 1 Vet. App. at 140. Evidence of record at the time of the November 2007 decision included the Veteran’s STRs that showed no complaint or manifestation of hearing loss or tinnitus. Service connection was denied on the basis that there was no evidence of current hearing loss or tinnitus. The Veteran submitted an application to reopen his claim of service connection for hearing loss and tinnitus in October 2014. Evidence received subsequent to the November 2007 rating decision includes a VA examination report dated in March 2015. At that time, diagnoses were rendered for sensorineural hearing loss of each ear and tinnitus. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus 3 Vet. App. at 510. The Board finds the current diagnoses of bilateral sensorineural hearing loss and tinnitus constitutes new and material evidence such that the claim may be reopened. To this extent, the appeal is allowed. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss and tinnitus Having decided that the claim for service connection for bilateral hearing loss and tinnitus has been reopened, the Board must now review the claim on a de novo basis. Review of the record shows that the March 2015 VA examination report included an opinion that the hearing loss and tinnitus were not related to the Veteran’s period of active duty. The basis for the opinion was essentially that the Veteran did not manifest a hearing loss or tinnitus at the time of separation from service. The Board notes that the Veteran has testified he was exposed to significant acoustic trauma of gunfire while onboard ship off the coast of the Republic of Vietnam (RVN). At the Board hearing, the Veteran and his spouse testified that he had been hard of hearing from soon after his separation from active duty. The examiner did not address the Veteran’s assertion of continuity of symptomatology since service. The U.S. Court of Appeals for Veterans Claims (Court) held that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i). Taking into account the Veteran’s statements in support of his claim, as well as the VA that notes that the Veteran has a current diagnosis of bilateral hearing loss and tinnitus, the Veteran’s claims for service connection should be remanded for an additional VA examination so as to determine whether any currently-diagnosed hearing loss or tinnitus is etiologically-related to his period of active service. With regard to the VA audiological examination, the VA examiner must not rely solely on the fact that the Veteran’s hearing was within “normal” limits for VA purposes at the time of separation from service when forming an opinion. If the aforementioned is the basis, or crux, or the examiner’s rationale, the opinion would be inadequate on which to base a decision. Entitlement to service connection for PTSD is remanded. Review of the record shows that the Veteran has claimed service connection for a psychiatric disorder and has been found to have been exposed to significant stressors during his service in the RVN. While the Veteran has been evaluated twice by VA examiners to ascertain whether he has PTSD due to service, neither examiner rendered a diagnosis of PTSD, with each stating that the Veteran did not meet the diagnostic criteria. During the Board hearing in January 2021; however, the Veteran and his spouse testified that he had “held back” certain feelings and symptoms that they believed would support a diagnosis of PTSD. As such, it was requested that the Veteran be afforded another psychiatric evaluation. Under these circumstances, the Board finds that an additional examination is warranted. The matters are REMANDED for the following actions: 1. A VA audiological examination should be scheduled to assess the nature and etiology of the Veteran’s currently diagnosed bilateral hearing loss and tinnitus. Following a review of the claims folder, the examiner must provide an opinion as to whether it is at least as likely as not that any bilateral hearing loss or tinnitus originated during active service, within one year of separation from service, or is otherwise related to noise trauma during active service. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should discuss pertinent evidence within the claims file. Consideration must be given to the Veteran’s and his spouse’s assertion of continuity of symptomatology. Further, the examiner must not rely on the fact that the Veteran’s hearing was within “normal” limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. Doing so would render the opinion inadequate. If it is the opinion of the examiner that the Veteran’s current hearing disorder is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran’s current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a “contributing factor” to any current hearing loss. 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD/acquired psychiatric disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.