Citation Nr: 21021196 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-01 294 DATE: April 12, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disorder other than PTSD is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January 1970 to March 1973; he has been 100 percent disabled since August 2015. 2. Service connection for PTSD was denied in an unappealed October 2004 rating decision. 3. Evidence received since the October 2004 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 4. PTSD has not been shown. 5. An acquired psychiatric disorder other than PTSD was not shown in service and is not causally or etiologically related to service. 6. Bilateral hearing loss was not shown during service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and bilateral hearing loss is not otherwise caused by or related to service. CONCLUSIONS OF LAW 1. The October 2004 rating decision which denied service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2020). 2. Evidence submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2020). 3. PTSD was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 4. A psychiatric disorder other than PTSD was not incurred in service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 5. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions dated in June 2011 and November 2015 by the Regional Office (RO). The November 2015 rating decision denied service connection for bilateral hearing loss and the June 2011 rating decision reopened and denied the claim for service connection for PTSD. The Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and other evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). When determining whether a claim is independent from a previously adjudicated claim, VA must consider whether the evidence truly amounts to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Although the RO did not address the claim as a request to reopen a previously denied claim for a psychiatric disorder in the June 2011 rating decision, as discussed below, there was a prior, final denial of service connection for PTSD. Thus, the Board has recharacterized the claim as encompassing all claimed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a Veteran's claim for service connection for PTSD includes any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record). As noted by the Court in Clemons, such an approach does not run afoul of the Federal Circuit's holding in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits. See Clemons, 23 Vet. App. at 8 ("Boggs stands for the proposition that, if there is a final agency decision denying a claim based on a particular diagnosis, and subsequently a new and different diagnosis is submitted for VA's consideration, the second diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim"). As shown below, there is no diagnosis of PTSD, consequently, Boggs is not for application, and the claim will be treated as an application to reopen the previously denied claim for service connection for a psychiatric disorder. See also Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020) (holding that the Clemons lenient-claim-scope rule applies to requests to reopen). New and Material Evidence to Reopen Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Service connection for PTSD was initially denied in an October 2004 rating decision on the basis that the Veteran was not diagnosed with PTSD, there was no evidence of any mental health disorder (to include PTSD) in service, there was no evidence of combat service, and there was not sufficient evidence to confirm an inservice stressor. The Veteran did not file a timely notice of disagreement with the October 2004 rating decision and no new and material evidence was received within a year of the October 2004 rating decision. As such, the October 2004 rating decision is final. The evidence added to the record since the October 2004 rating decision is new and material, and reopening of the claim is in order. In this regard, the evidence added to the record includes VA treatment records in 2007-2008 which noted a diagnosis of delusional disorder, persecutory type, adjustment disorder, and personality disorder. Additionally, a February 2010 VA treatment record notes a diagnoses of major depressive disorder, recurrent, severe, with psychotic features. This new evidence raises a reasonable possibility of substantiating the claim, as it reflects a psychiatric diagnosis where there was previously none. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Acquired Psychiatric Disorder to Include PTSD Service connection for PTSD requires medical evidence of a current diagnosis, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As to the claim for PTSD, the record does not show that the Veteran has a confirmed diagnosis of PTSD; rather, the medical evidence shows only a “rule/out” diagnosis. Further, the May 2011 and October 2015 VA PTSD examinations both reflect that the Veteran did not meet the full criteria for a diagnosis of PTSD. As noted above, service connection may only be granted for a current disability. As there is no confirmed current diagnosis of PTSD, the medical evidence does not support the claim. As to an acquired psychiatric disorder other than PTSD, VA treatment records reflect diagnoses of delusional disorder, persecutory type, adjustment disorder and major depressive disorder, recurrent, severe, with psychotic features. As such, the first element of service connection is met. As to in-service incurrence, the psychiatric evaluation was normal at the time of the 1973 separation examination. There was also no evidence of complaints of any psychiatric disorder during service. Importantly, no psychiatric disorder was ever diagnosed in service, and the separation examination reflects normal psychiatric evaluation. While the Veteran has alleged that his psychiatric disorder is due to events in service (witnessing a suicide during service, retrieving bodies of soldiers killed in action, and his occupational specialty as a machine gunner), it has not been found to be related to any current psychiatric disorder. The medical evidence reflects that the Veteran was not diagnosed with or treated for a psychiatric disorder for many years following service. Therefore, the medical evidence does not support an in-service incurrence. To the extent that the Veteran claims a medical nexus between his current psychiatric disorders and service, the weight of the medical evidence is against the claim. Specifically, the VA treatment records showing a current diagnosis do not reflect any nexus to service. Instead, the May 2011 and October 2015 VA PTSD examiners opined that the Veteran’s delusional disorder, persecutory type, adjustment disorder and major depressive disorder, recurrent, severe, with psychotic features were not due to/the result of service. As such, the medical evidence does not support the claim. Further, although the Veteran was diagnosed with a personality disorder, a personality disorder is not a disability under the law for which service connection may be awarded. See 38 C.F.R. § 3.303(c). Therefore, the medical evidence does not support service connection. Bilateral Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran has claimed entitlement to service connection for bilateral hearing loss. He has been diagnosed with bilateral hearing loss that meets VA regulatory criteria at 38 C.F.R. § 3.385. Additionally, his service records establish that he was a machine gunner. As such, the first element of service connection is met and in-service noise exposure is conceded. As to in-service incurrence, the service treatment records (STRs) reflect no hearing complaints. All examinations and audiograms reveal hearing within normal limits. Further, the Veteran does not contend that he sought treatment for hearing loss during service. Therefore, the medical evidence does not support the second element of direct service connection. As to presumptive service connection based on chronicity/continuity of symptomatology, the earliest recorded diagnosis of hearing loss was in an October 2015 VA examination report and the earliest recorded complaint of hearing loss is the Veteran’s August 2015 service connection claim. Notably, the Veteran did not report any hearing loss in service or at service separation in 1973, and hearing was found to be normal at service separation. Further, he did not report any ongoing symptoms of hearing loss at the October 2015 VA examination and he specifically denied hearing loss/hearing problems or hearing was noted to be normal in VA treatment records dated in October 2007, March 2008, October 2008, December 2011, June 2013, and February 2015. This evidence weighs against a finding of ongoing symptoms since service. Instead, the 40 plus-year period between service and the onset of hearing loss is one factor that weighs against a finding of service continuity. The Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. To the extent that the Veteran contends that he had symptoms of hearing loss in service and since, the medical evidence of record does not support this contention. For these reasons, the medical evidence does not support presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met. Additionally, the medical evidence does not show that hearing loss manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. As noted, the earliest record of hearing loss complaints was not until the August 2015 service connection claim, with no earlier complaints; therefore, the medical evidence does not support presumptive service connection under the provisions of 38 C.F.R. § 3.309(a). As to a medical nexus between the current bilateral hearing loss and service, the October 2015 VA examiner opined that it was less likely than not that the Veteran’s hearing loss was due to or a result of in-service noise exposure. The audiologist reasoned that hearing was normal on discharge in 1973 and when compared with the enlistment examination from 1969, there was no significant threshold shift in either ear. There is no medical evidence in support of the claim. As such, the medical evidence does not support the claim. The Board has considered the Veteran’s lay statements that he has PTSD related to service and his bilateral hearing loss and other psychiatric disorders (other than PTSD) were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer a diagnosis of PTSD or an opinion as to the etiology of his current bilateral hearing loss or psychiatric disorders other than PTSD due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.