Citation Nr: 21021562 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-29 545 DATE: April 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and adjustment disorder with depressed mood is granted. Entitlement to service connection for tinnitus is granted. New and material evidence having been received sufficient to reopen a previously denied claim to establish for service connection for a back disability, the claim to reopened is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the most probative evidence reflects that PTSD and adjustment disorder with depressed mood are at least as likely as not related to the Veteran’s active duty. 2. Resolving reasonable doubt in the Veteran’s favor, tinnitus had its onset in service. 3. In a May 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim to establish service connection for a back disorder, and the decision was not appealed. 4. Evidence received since the final May 2003 rating decision raises a reasonable possibility of substantiating the issues to establish service connection for a back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD and adjustment disorder with depressed mood have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. New and material evidence has been received to warrant reopening of the previously denied claim of entitlement to service connection for a back disability. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from September 1989 to June 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. The Veteran subsequently testified at a virtual hearing in February 2021 held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. SERVICE CONNECTION AND NEW AND MATERIAL EVIDENCE Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition to the above criteria, claims of service connection for PTSD require a medical diagnosis of PTSD, an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2012). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a layperson is competent to identify tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection 1. Entitlement to service connection for PTSD The first element of service connection is met, in that a May 2015 VA PTSD examiner concluded the Veteran has a current diagnosis of PTSD that conforms to DSM-5 (The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) criteria. The second element of service connection is also met, in that the May 2015 examiner accepted the Veteran’s stressors in support of the criteria for his PTSD diagnosis. The Veteran consistently reported three incidents while in service that have caused him PTSD symptoms; the Veteran found a fellow service member who had taken his own life, the Veteran having been pinned between equipment while providing support activities, and having witnessed a plane accident with fatalities while on the ship. The Veteran’s service treatment records specifically reference one stressor, the incident of the Veteran having been pinned between equipment. The May 2015 examiner’s report confirmed that the Veteran has subjective symptoms such as avoidance of reminders, feelings of detachment, irritable behavior, hypervigilance, and sleep disturbance, among others. Upon review of the records, the Board finds that the Veteran’s statements are internally consistent, and that his descriptions of the specific incidents in service, including the dates and locations, where he was stationed, is consistent. Further, there is no other evidence of record that directly contradicts the Veteran’s consistent report of his in-service stressors. Consequently, the Board finds the Veteran’s reports to be competent and credible. The Board also finds that the final element of service connection, a positive nexus, is also met in this case, as the May 2015 examiner opined that the Veteran’s PTSD and adjustment disorder with depressed mood are at least as likely as not a reaction to his exposure to traumatic events while in service. Given all of these facts, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has PTSD and adjustment disorder with depressed mood that are related to an in-service stressful event. Therefore, the Board will give the Veteran the benefit of the doubt in this matter and find that a grant of service connection for an acquired psychiatric disorder, diagnosed as PTSD and adjustment disorder with depressed mood, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus began in service and has continued since. At the February 2021 hearing the Veteran stated that he began to notice tinnitus shortly after he got into service. He elaborated that in the hanger bay, where he worked as a tractor driver moving airplanes, was right below the flight deck and he could hear noise from planes taking off and landing, he experienced extremely loud noises. Therefore, acoustic trauma having occurred in service is conceded. The Veteran was a VA examination in June 2015. The examiner concluded the Veteran had no hearing loss during service to support the claim that tinnitus is due to service. As the examiner relied upon the lack of hearing loss to find no nexus between the Veteran’s tinnitus and in-service noise exposure, the Board finds the rationale to be inadequate and has therefore assigned the opinion little probative value. As already noted, the Veteran is considered competent to testify as to the observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained that his tinnitus began in service and has continued since. As the Board finds that the Veteran is competent and credible with respect to his continuing symptoms of tinnitus and its initial onset during a period of active duty, the Board has assigned his statements high probative value. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, and resolving all reasonable doubt in favor of the Veteran, since this condition is a disease of the nervous system that can be linked to service by credible statements of continuity of symptomatology, the Board finds that service connection for the Veteran’s tinnitus is also warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Petition to reopen Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. As will be fully discussed below, the Board concludes that, since the prior final denial, VA has received evidence which is new and material and raises a reasonable possibility of substantiating the issue. As such, the issue is reopened. Evidence indicates that there may be outstanding relevant VA treatment records. Pertinently, the Veteran’s claim to establish service connection for a back disability was previously denied in the May 2003 rating decision because it was determined that the evidence received prior to the May 2003 was not new and material, because it still did not show a current back disability or link such a disability to service. In December 2014 the Veteran filed a petition to reopen the previously denied claim for a back disability. In a June 2015 rating decision, the AOJ denied the petition, stating that no new and material evidence had been received sufficient to reopen the previously denied claim. Regardless, the Board is not bound by those determinations as to whether the claims should be reopened and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The bases of the prior final denial by the AOJ in May 2003 are articulated, above. In order for the previously denied claims to be reopened, evidence must have been added to the record since the May 2003 decision that addresses these bases. Pertinently, additional evidence received by VA since the May 2003 rating decision includes the Veteran’s a report of the specific surgery the Veteran was subjected to due to his back disability. The new evidence includes documentation from a private medical provider, stating that the Veteran had a fusion of the L3-L5 and has continued to have pain in his back since this incident. The evidence outlined above is “new,” as it was not before VA at the time of the May 2003 rating decision, and “material” as it raises the reasonable possibility of substantiating the previously denied claims. The Board thus finds that new and material evidence has been submitted to reopen the issue to establish service connection for a back disability since the prior final denial in May 2003. On that basis, the claim is reopened, and the appeal is granted to that extent only. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. As noted above, the Veteran testified at the February 2021 virtual hearing that he initially injured his low back during his active duty and that he has dealt with the pain associated with that injury since. The Veteran’s service treatment records reflect the treatment the Veteran received for his back injury after having been pinned between equipment. In a December 2014 claim for service connection for his back disability the Veteran reported that he had been receiving treatment at the Kansas City VA Medical since 1992. These medical records were not associated with the Veteran’s claims file, and the file contains no records of efforts to retrieve these records. While no specific diagnosis has been given for his back pain, the Veteran’s VA treatment records are not associated with his file, and a March 2021 private record provided by the Veteran contains a statement of the chronic back pain experienced by the Veteran since service and information regarding procedures done to his back since, such as a L3-L5 fusion, stemming from the November 1990 incident when the Veteran was pinned between equipment. In light of above, the Board concludes that VA’s duty to assist requires that VA obtain any additional relevant evidence and provide the Veteran an examination to determine the nature and etiology of any low back disability present during the appeal period. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A remand is required to obtain VA treatment records and afford the Veteran a VA medical examination to determine the etiology of his back disabilities. Updated VA and private treatment records pertaining to the issue remanded, herein, must also be obtained and associated with the file so that the subsequent VA examiner can provide opinions based on the Veteran’s complete disability picture. The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of relevant VA and private treatment pertaining to the Veteran’s current back disability. 2. Thereafter, the AOJ must schedule the Veteran for an examination with an appropriate VA clinician to determine the nature, etiology, and approximate date of onset of his back disability. The examiner is requested to review all pertinent records associated with the file, including the Veteran’s service treatment records, post-service medical records, and lay statements. (a.) Thereafter, the examiner should address the following: (b.) Identify any back disability present during the appeal period. (c.) For each disability identified in part (a), provide an approximate date of initial onset (month and year). (d.) For each disability identified in part (a), provide an opinion addressing whether the Veteran’s back disability is at least as likely as not (i.e., 50 percent probability or greater) related to service. (e.) If the Veteran’s reported back pain is not found to be a manifestation of any disability (service-connected or otherwise), please describe the functional impairment resulting from such pain and whether it is at least as likely as not (i.e., 50 percent probability or greater) related to service. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran’s back pain on his ability to stand, walk, run, stoop, lift objects, bend, and maintain balance. In addressing the above, the examiner is on notice that the Veteran is competent and credible to report experiencing pain and such evidence may not be discounted for the sole reason that it is not reflected in the medical evidence. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definite opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.