Citation Nr: 21013362 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-15 084 DATE: March 9, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for tinnitus is reopened. Service connection for an acquired psychiatric disability, claimed as delirium tremens and diagnosed as alcohol use disorder, in partial remission, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure in Thailand, is remanded. FINDINGS OF FACT 1. A rating decision issued in December 2008 denied the Veteran’s service connection claim for bilateral hearing loss. Although the Veteran was notified of the December 2008 rating decision, he did not appeal. 2. A rating decision issued in December 2008 denied the Veteran’s service connection claim for tinnitus. Although the Veteran was notified of the December 2008 rating decision, he did not appeal. 3. The evidence submitted by the Veteran subsequent to the December 2008 rating decision in support of reopening his service connection claim for hearing loss relates to a previously unestablished fact necessary to substantiate the claim and is neither cumulative nor redundant of the evidence previously submitted into the record. 4. The evidence submitted by the Veteran subsequent to the December 2008 rating decision in support of reopening his service connection claim for tinnitus relates to a previously unestablished fact necessary to substantiate the claim and is neither cumulative nor redundant of the evidence previously submitted into the record. 5. A preponderance of the evidence of record indicates that the Veteran does not have a current psychiatric diagnosis as defined by VA regulations. CONCLUSIONS OF LAW 1. The December 20008 rating decision is final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309, 3.385. 3. New and material evidence sufficient to reopen the claim of service connection for tinnitus has been received. 38 U.S.C. § 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for an acquired psychiatric disability, claimed as delirium tremens and diagnosed as alcohol use disorder, in partial remission, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.655, 4.9, 4.125, 4.127, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Air Force from March 1962 to September 1986, including service in Thailand. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in January 2021; a transcript of that hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (2016). See 38 U.S.C. § 7107(b) (2020). New and Material Evidence Rating decisions from which an appeal is not perfected become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 C.F.R. § 20.200. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the AOJ has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and which is 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim requires consideration of whether the newly submitted evidence could reasonably substantiate any previously unestablished element of the claim were it to be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). However, finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected. See Bingham v. Nicholson, 421 F.3d 1346, 1348-50 (2005). Accordingly, a new theory of causation for a disease that was the subject of a previously denied claim cannot be the basis of a new claim absent a presentation of new and material evidence or of clear and unmistakable error. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); 38 U.S.C. §§ 7103(a), 7104(a), (b), 7111(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. 2. New and material evidence having been submitted, the claim of entitlement to service connection for tinnitus is reopened. In this case, the Veteran contends that he has submitted new and material evidence sufficient to warrant reopening of his service connection claims for bilateral hearing loss and tinnitus. The Veteran’s service connection claims for bilateral hearing loss and tinnitus were initially denied in a December 2008 rating decision on the grounds that the record contains no evidence that the Veteran currently suffers from tinnitus or a diagnosis of hearing loss as defined by VA regulations. Although the Veteran was notified of the December 2008 rating decision denying his claims, he did not appeal the decision. Accordingly, the December 2008 rating decision became final in December 2009. See 38 C.F.R. § 20.1103, 20.200 (2020). In June 2015, the Veteran filed a subsequent service connection claim for bilateral hearing loss and tinnitus; however, the Veteran’s request to reopen such claims was denied in a November 2015 rating decision on the grounds that the VA treatment records submitted by the Veteran did not constitute new and material evidence or relate to the previously unestablished element of current diagnoses necessary to substantiate the Veteran’s bilateral hearing loss and tinnitus claims. See 38 C.F.R. § 3.156(a). In January 2021, the Veteran testified at a Board hearing before the undersigned that his hearing loss and tinnitus claims warrant reopening on the grounds that he has submitted new and material evidence as follows: (1) his bilateral hearing loss has worsened since his last VA examination in November 2017; (2) his hearing loss initially began during service and has continued ever since; and (3) his tinnitus symptoms initially began during service and have continued ever since. The Board finds that the Veteran’s January 2021 Board hearing testimony constitutes new and material evidence sufficient to reopen his service connection claims for bilateral hearing loss and tinnitus. Specifically, the Veteran has asserted that his hearing loss has worsened since his last examination, as well as that his hearing loss and tinnitus symptoms initially began during service and have continued ever since. Accordingly, the Board finds that because the Veteran’s testimony relates to the previously unestablished but required elements of a current disability and a nexus between such disability and the Veteran’s military service, the Veteran’s request to reopen his claim for hearing loss is granted. See Shade, 24 Vet. App. at 121. Service Connection Service connection for an acquired psychiatric disability, claimed as delirium tremens and diagnosed as alcohol use disorder, in partial remission, is denied. The Veteran contends that he is entitled to service connection for an acquired psychiatric disability, which he has claimed as delirium tremens, and which has been diagnosed as alcohol use disorder, in partial remission. Because the evidence of record demonstrates the potential existence of more than one psychiatric disorder, the Board has expanded the issue on appeal to include consideration of whether service connection may be awarded for any acquired psychiatric disability, including delirium tremens or alcohol use disorder, in partial remission. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In order to warrant service connection for an acquired psychiatric disability, a claimant must demonstrate competent evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Absent competent evidence of a current psychiatric diagnosis, there can be no valid psychiatric claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, and the weight of the evidence amounts to relative equipoise, the claimant shall be afforded the benefit of the doubt. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran’s claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). In this case, after careful review of the evidence of record, the Board finds that the preponderance of the evidence of record weighs against a finding that the Veteran has submitted competent and credible medical evidence of a diagnosis of an acquired psychiatric disability. See 38 C.F.R. § 4.130. The Veteran contends that during service he experienced an incident which caused him to believe he had delirium tremens and involved the following: (1) during a 1967 deployment to Taiwan, the Veteran reports that after “drinking quite a bit,” he fell “over a coffee table, dead drunk” and hit his head; (2) he reports he was subsequently “out for a day with [his] friends taking care of [him];” (3) he further reports he was later “in the Taichung Building, and the stairwells are quite narrow;” (4) he was “drinking that day” and subsequently fell “down those stairs;” (5) later, while he was at work, he looked up and “saw fire;” (6) he then threw a phone at the fire; (7) subsequently, some “guys put a pencil across my tongue so [he] would swallow [his] tongue; (8) he was then taken to the hospital;” (9) at the hospital, he saw a “picture on the wall with water,” and then “saw the water was rippling,” so he “told the nurse who gave him “a shot;” (10) the next thing he remembers was “being taken to the Philippines;” (11) he was hospitalized in the Philippines for a week and was treated with “Thorazine;” and (12) he further reports that thereafter, “[a]ll of it went away,” and he “never had any episodes of anything.” The Veteran further testified at his January 2021 Board hearing before the undersigned that he suffered from “nervous tremors” during service, but that he has had no such symptoms since his separation from service, and that he currently does not have a psychiatric diagnosis and does not receive psychiatric treatment. In October 2015, the Veteran was afforded a VA psychiatric examination which culminated in a report diagnosing the Veteran with alcohol use disorder, in partial remission, but declining to issue a diagnosis for delirium tremens or any other psychiatric condition. Despite the Veteran’s contentions that he suffers from delirium tremens, the Board is unable to afford his statements any probative value, as only those possessing specialized medical knowledge, training, or experience are considered competent to opine on complex medical questions such as a psychiatric diagnosis. See Jones v. West, 12 Vet. App. 383, 385-86 (1999). In addition, the Veteran himself testified at his January 2021 Board hearing that he no longer suffers from any symptoms related to delirious tremens. Accordingly, the Board finds that, due to a lack of competent evidence of a current psychiatric diagnosis, a preponderance of the evidence of record weighs against the Veteran’s claim for service connection for delirium tremens, and it must therefore be denied. See Gilbert, 1 Vet. App. at 53-54. The Board has also considered whether the Veteran is entitled to service connection for his current diagnosis of alcohol use disorder, as the October 2015 VA examination report indicated such a diagnosis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). However, as stated above, a threshold requirement for the granting of service connection is evidence of a current disability, see Brammer, 3 Vet. App. at 225, and VA regulations expressly exclude from compensation (1) primary alcohol abuse disabilities, defined as an alcohol abuse disability arising during service from voluntary and willful use; and (2) secondary disabilities (e.g., cirrhosis) that result from primary alcohol abuse. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1 (n), 3.301(c); Martin v. McDonald, 761 F.3d 1366, 1371 (Fed. Cir. 2014). Although compensation may be awarded for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran’s service-connected disability, the Board finds that the Veteran does not raise, and the evidence of record does not support, such a secondary claim in this case, as the Veteran is not currently service-connected for any disabilities upon which secondary entitlement to service connection for alcohol use disorder may be established. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Therefore, any disability resulting from the Veteran’s alcohol use disorder is ineligible for service connection, see Winn v. Brown, 8 Vet. App. 510, 516 (1996), and this aspect of the Veteran’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, in light of the foregoing, the Board finds that a preponderance of the competent and credible evidence of record reflects that the Veteran has not been diagnosed with delirium tremens; rather he has been diagnosed with alcohol use disorder, which does not satisfy the threshold requirement of a current disability. See Winn, 8 Vet. App. at 516. Therefore, because the threshold service connection element of a current disability has not been met, the Veteran’s service connection claim for an acquired psychiatric disability must be denied. See Brammer, 3 Vet. App. at 225; Gilbert, 1 Vet. App. at 53-54. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. Unfortunately, the Veteran’s service connection claims for bilateral hearing loss and tinnitus must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The Veteran was last afforded a VA audiological examination in November 2017, which culminated in a report finding that the Veteran does not suffer from bilateral hearing loss for VA purposes, and that his tinnitus was not causally related to his active military service. However, at his January 2021 hearing before the undersigned, the Veteran testified as follows: (1) his bilateral hearing loss has worsened since his last VA examination in November 2017; (2) his hearing loss initially began during service and has continued ever since; and (3) his tinnitus symptoms initially began during service and have continued ever since. Accordingly, because there is an indication that the symptoms of the Veteran’s hearing loss may have increased in severity since his last VA examination, as well as that his hearing loss and tinnitus symptoms may be related to his active military service, a remand is warranted to obtain a contemporaneous VA examination assessing (1) the current severity of the Veteran’s hearing loss and to determine whether it constitutes a disability as defined by VA regulations; and (2) whether his bilateral hearing loss and tinnitus are causally related to his active military service. See 38 C.F.R. § 3.385 (2020); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the VA examiner must consider the Veteran’s competent January 2021 hearing testimony regarding the onset and nature of his hearing loss and tinnitus symptoms during service. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 3. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure in Thailand, is remanded. Unfortunately, the Veteran’s service connection claim for diabetes mellitus must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his diabetes mellitus, diagnosed in 1997, was caused by his in-service exposure to herbicide agents during his military service in Thailand. In October 2015, the Veteran underwent a VA examination which culminated in a report finding that the Veteran’s diabetes mellitus is not causally related to his diagnosis of delirium tremens; however, the October 2015 VA examination did not address whether the Veteran’s diabetes mellitus warrants direct service connection, or whether it is related to his service-connected hypertension. As a result, the Board concludes that the October 2015 VA opinion’s failure to address all relevant theories of compensation renders it inadequate, and therefore, devoid of any probative value. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Thus, upon remand, the AOJ shall obtain an advisory medical opinion from an independent medical expert as set forth in the directives below. See id. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with a licensed audiologist to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss and tinnitus. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to a) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hearing loss is due to or otherwise causally or etiologically related to his military service. b) whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s tinnitus is due to or otherwise causally or etiologically related to his military service. The Veteran is presumed to have been exposed to military acoustic trauma, to include hazardous noise emanating from aircraft jet engines, during his 24 years of service as a jet engine technician. The examiner must address the Veteran’s January 2021 Board hearing testimony, to include the following: (1) that his bilateral hearing loss has worsened since his last VA examination in November 2017; and (2) that his hearing loss initially began during service and has continued ever since and (3) that his tinnitus symptoms initially began during service and have continued ever since. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development, and any additionally indicated development has been completed, obtain an addendum opinion as to the etiology of the Veteran’s diabetes mellitus. An examination of the Veteran is only necessary if deemed so by the examiner. The entire claims file must be reviewed by the examiner. An opinion and a rationale are requested regarding a) whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus had its onset during his military service or is otherwise causally related to his military service. b) whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus is caused or aggravated by the service-connected hypertension? (Continued on the next page)   The examiner is requested to include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.