Citation Nr: 21022572 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-25 188 DATE: April 16, 2021 ORDER New and material evidence having been presented to reopen a claim of entitlement to service connection an eye disability, to include glaucoma, as secondary to service-connected hypertension, and to that extent only, the claim is granted. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection an eye disability, to include glaucoma, as secondary to service-connected hypertension is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), bipolar depression, and anxiety is remanded. Entitlement to a compensable rating for right ear hearing loss is remanded. FINDINGS OF FACT 1. An unappealed June 2009 rating decision denied service connection for an eye disability. Since that decision, the Veteran has provided new and material evidence regarding the possible etiology of the claimed disabilities. 2. The Veteran’s left ear hearing loss meets the regulatory threshold to be considered a disability for VA purposes, and resolving all reasonable doubt in the Veteran’s favor, evidence of record shows that the Veteran’s left ear hearing loss was etiologically related to noise exposure during service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for an eye disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The Veteran’s left ear hearing loss was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1985 to June 2005. In February 2021, the Veteran testified during a video hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. 1. New and material evidence having been presented to reopen a claim of entitlement to service connection an eye disability, to include glaucoma, as secondary to service-connected hypertension, and to that extent only, the claim is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regarding the Veteran’s claim for service connection for an eye disability, a June 2009 rating decision denied service connection based on the lack of finding of an etiological relationship between his condition and service. The Veteran was notified of that decision and of his appellate rights. He did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156(b). Accordingly, the June 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In March 2019, the Veteran filed a claim to reopen the previously denied claims for service connection for an eye disability. A June 2019 rating decision denied the claim, again finding that there was no evidence of any etiological nexus between any current disability and his service. The Veteran filed a timely Notice of Disagreement (NOD) and substantive appeal (VA Form 9) and the claim is before the Board. The Board finds that a review of all of the evidence of record, to specifically include that submitted or acquired after the last/final denial of service connection does show evidence that can be considered both new and material, as to warrant reopening the claim. The Board notes that for a previously and finally denied claim to be reopened, the pending evidence meet both requirements of being new and material. 38 C.F.R. § 3.156(a). Here, the newly acquired evidence of record, include VA and private medical records, to include a positive opinion letter from a private physician that correlated the Veteran’s claimed eye disability to his service-connected hypertension. The Board finds such evidence to be considered both new as it was not a part of the record prior to the previous decision, and material, as it shows a reasonable possibility of substantiating a previously undetermined fact. Consequently, as the Veteran has advanced a new theory to entitlement, and as there is additional evidence to support such secondary theory of entitlement, the Board must find that new and material evidence sufficient to reopen the Veteran’s claim for service connection has been submitted, and the claim must be reopened. 38 C.F.R. § 3.156. 2. Entitlement to service connection for left ear hearing loss The Veteran claims that his current left ear hearing loss was incurred during active service. Specifically, the Veteran notes that he was exposed to noise trauma from working on the flight-line during his 20 years of active service, which resulted in hearing loss. VA has already conceded in-service noise exposure and has already established service connection for right ear hearing loss. The Board finds that the evidence of record is sufficient to establish that the Veteran incurred hearing loss in the left ear during active service due to his active service noise trauma. Therefore, service connection for left ear hearing loss must be granted. Generally, to prevail on a claim for service connection on the merits, there must be competent and credible evidence (1) confirming the Veteran has the claimed disability or, at the very least, showing the disability at some point since the filing of the claim for the disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently-claimed disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has been diagnosed with sensorineural hearing loss of the left ear for VA purposes and has a current disability. He has undergone numerous audiograms during the course of the appeal that show that left ear hearing loss meets the regulatory threshold to be considered a disability for VA purposes. 38 C.F.R. § 3.385. Specifically, in both the May and December 2013 VA audiological examinations, the Veteran’s puretone thresholds registered above 40 decibels in at least one auditory threshold, and also at least three auditory thresholds were greater than 26 decibels. Therefore, that level of left ear hearing loss met the threshold to be considered a disability for VA purposes during the appeal period. 38 C.F.R. § 3.385. The Veteran is considered to have a current disability of right ear hearing loss for the purposes of establishing service connection for left ear hearing loss. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board finds that a close review of the both VA and private nexus opinions of record reveals a positive etiological correlation between the Veteran’s active service noise trauma and his currently diagnosed left ear hearing loss. Here, VA examinations conducted in both May and December 2013, not only concedes inservice noise exposure, but also affirmatively concluded that the Veteran’s hearing loss was due to such exposure during service. To this end, as neither examiner specified which ear hearing loss the etiological opinion was referring to, the Board finds no reason that such positive opinion does not also encompass the left ear hearing loss assessed in the same examination. In addition to the VA examination opinions, the Veteran has also submitted two separate private opinion letters, from March 2012 and October 2013, from his treating physician that explicitly states that the Veteran’s left ear hearing loss was due to his noise exposure during service. The Board finds these examination opinions to be compelling and dispositive of the claims, especially in light of the already granted right ear hearing loss. Here, the Veteran has consistently been denied service-connect for the left ear, due to a finding of no evidence of an inservice noise trauma. The Board, however, finds that such inservice trauma established not only by the evidence of record, to include the Veteran’s explicit and consistent lay statements, but also from the findings of the VA and private examiner of record. The Board also find that such inservice trauma is implicitly conceded/established by the previous granting of service connection for the right ear hearing loss. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that he has a left ear hearing loss disability that is etiologically related to his active service. Therefore, service connection for left ear hearing loss is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection an eye disability, to include glaucoma, as secondary to service-connected hypertension is remanded. The Board notes that the Veteran has not been provided a VA examination with regard to the claim for service connection for an eye disability. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With specific regards to the Veteran’s claim for an eye disability, the Veteran has recently asserted a new claim for entitlement, to include as secondary to his already service-connected hypertension. In support of this claim, the Veteran submitted an opinion letter from a private physician that, generally, relates the type of eye condition the Veteran has been diagnosed with, and the development of hypertension. This August 2018 private opinion letter, however, is not considered dispositive of the claim, as it fails to specify whether the Veteran’s specific eye condition is due to his hypertension, and only speaks in general terms. However, the Board finds that such medical evidence is sufficient to overcome the low threshold necessary to trigger VA’s duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), bipolar depression, and anxiety is remanded. The Board finds that the VA examinations provided to the Veteran in December 2013 and March 2016, with regard to the claims for a psychiatric disability to be inadequate and incomplete. While the VA examiners provided an opinion regarding not finding a diagnosis for PTSD, and no indication of a psychiatric condition during service, both examiners failed to address or provide any analysis regarding to whether the other diagnosed psychiatric conditions noted of record, to include bipolar depression and anxiety, had been caused by the Veteran’s asserted inservice stressors/events. Accordingly, the Board finds that both VA examination for record are inadequate and remand is required. The Board notes that, the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering additional medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board finds that as VA examinations of record are inadequate, and VA should afford the Veteran another VA examination to fulfill the duty to assist. 3. Entitlement to a compensable rating for right ear hearing loss is remanded. With regard to the claim for increased rating for right ear hearing loss, the Board notes that the Veteran was last provided an examination in December 2013, over seven years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of worsening of hearing loss, to specifically include during hearing testimony, were explicitly expressed by the Veteran. When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examination appears to no longer indicate the current level of hearing loss. As such, a more contemporaneous examination is needed. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from private treatment providers that are not already of record. 3. Schedule the Veteran for a VA examination with a qualified medical examiner. The examiner must review the claims file and should note that review in the report. The examiner should provide an opinion regarding the nature and etiology of his claimed eye disability. Any additional tests that the examiner deems necessary should be performed. The rationale for all opinions expressed should be provided. Specifically, the examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent probability or greater) that any eye disability diagnosed during the pendency of the appeal is related to service or any event, disease, or injury during service? (b) Is it at least as likely as not (50 percent probability or greater) that any eye disability diagnosed during the pendency of the appeal is due to or the result of any service-connected disability, to especially include his hypertension? (c) Is it at least as likely as not (50 percent probability or greater) that any eye disability diagnosed during the pendency of the appeal has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability, to especially include his hypertension? 4. Schedule the Veteran for a VA psychiatric examination with a qualified medical examiner. The examiner must review the claims file and should note that review in the report. The examiner should provide an opinion regarding the nature and etiology of his claimed psychiatric disability, to explicitly include bipolar depression, anxiety, and PTSD, to include an explicit diagnosis. Any additional tests that the examiner deems necessary should be performed. The rationale for all opinions expressed should be provided. Specifically, the examiner should provide an opinion noting whether, it is at least as likely as not (50 percent probability or greater) that any psychiatric disability diagnosed during the pendency of the appeal is related to service or any event, disease, or injury during service? The examiner must explicitly speak to the Veteran’s specific and credible lay assertions regarding stressor such as car accidents and his divorce in service. 5. Then, schedule the Veteran for a VA examination to assess the nature and severity of his right ear hearing loss disability. The examiner should conduct audiometric and Maryland CNC speech recognition testing and should opine whether a diagnosis of hearing loss is warranted. A complete rationale for any opinion expressed should be included in the report. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.