Citation Nr: 21023003 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-36 057 DATE: April 19, 2021 ORDER New and material evidence having been received, reopening of the previously denied claim for a nervous condition is granted. REMANDED Service connection for a bilateral hearing loss disability is remanded. Service connection for tinnitus is remanded. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety NOS, is remanded. FINDINGS OF FACT 1. A November 1979 rating decision denied service connection for a nervous condition. The Veteran received notification of the rating decision in November 1979 but did not file an appeal or submit new and material evidence within the applicable one-year period. 2. Evidence submitted since the November 1979 rating decision was not previously of record and relates to unestablished facts necessary to substantiate the claim of service connection for a nervous condition. CONCLUSIONS OF LAW 1. The November 1979 rating decision that denied the claim of service connection for a nervous condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the November 1979 rating decision is new and material and sufficient to reopen the claim of service connection for a nervous condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to December 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for a bilateral hearing loss disability, tinnitus, and PTSD. In August 2012, VA received the Veteran’s Notice of Disagreement (NOD). In September 2015, the RO issued a Statement of the Case (SOC). In September 2015, VA received the Veteran’s VA Form 9 appeal to the Board. On the VA Form 9, the Veteran initially requested a Board hearing at a local VA office. In August 2016, he withdrew this request and instead requested a hearing before a Decision Review Officer (DRO) at the RO. In July 2019 the Board remanded the case for further development and adjudicative action. Specifically, the Board directed the RO to conduct a DRO hearing as requested by the Veteran. In March 2020, the Veteran testified at a videoconference DRO hearing. A summary of the discussion has been uploaded to the claims file. At the outset, given that there are competent diagnoses of depressive disorder and anxiety NOS of record, the Veteran’s claim for PTSD is expanded to include all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the RO previously denied service connection for a “nervous condition” in a November 1979 rating decision. Furthermore, the Veteran does not currently have a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders (DSM). Claims that are based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. Boggs v. Peake, 520 F.3d 1330, 1336 (2008). However, new and material evidence is required to reopen a claim that has been previously adjudicated in a final decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As the Veteran does not currently have a proper diagnosis of PTSD, his claim for PTSD is considered the same claim as the previously denied claim for service connection for a nervous condition. Accordingly, his claim for PTSD must initially be considered as a petition to reopen the previously denied claim for a nervous condition based on new and material evidence. New and Material Evidence 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim for a nervous condition. A finally adjudicated claim shall be reopened and reviewed if new and material evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (c). VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124 (Lance, J. concurring). In August 1979, VA received the Veteran’s original claim for service connection for a nervous condition. In a November 1979 rating decision, the RO denied the claim because service treatment records (STRs) provided no evidence of “psychoneurosis.” In November 1979, the Veteran was notified of the rating decision. He did not appeal the decision or submit new and material evidence within one year of notification of the decision. Therefore, the November 1979 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In December 2010, VA received the Veteran’s claim for PTSD, which has been construed as a claim to reopen the previously denied issue of service connection for a nervous condition. In September 2011, the RO denied the claim on the merits because the Veteran did not have a diagnosis of PTSD. Evidence of record at the time of the November 1979 rating decision included STRs, an October 1979 VA examination report, and U.S. Virgin Islands Department of Health psychiatric records. Evidence received following the November 1979 rating decision includes VA treatment records, VA examination reports from July 2011, May 2013, and March 2020, and August 2012 statements by the Veteran and his spouse. The evidence received after the November 1979 rating decision relates to unestablished facts necessary to substantiate the claim and is not cumulative or redundant. Therefore, reopening of the claim for service connection for a nervous condition is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran received an initial VA examination for his bilateral hearing loss and tinnitus in July 2011. During the examination, the Veteran reported exposure to mortars while serving as an infantryman in Vietnam. However, in the examination report, the July 2011 audiologist noted that May 1969 and May 1970 audiograms, and a whisper test administered at separation revealed normal hearing. Regarding the tinnitus, the examination report appears to show onset from “one year and a half” – accepted by the audiologist as an age of onset rather than a time interval from service. Although the audiologist provided a diagnosis of bilateral sensorineural hearing loss, the audiologist concluded that the Veteran’s bilateral hearing loss was “less likely as not related to the noise exposure as an infantryman in service.” The audiologist provided the following rationale: While veteran was exposed to high intensity noise levels of military type that are known to caused (sic) damage in inner ear structures, he presented bilateral normal hearing in 1969 and 1970. Other factors such as normal aging process must be considered in this case, since it can also result in permanent hearing loss. Tinnitus onset was since one year and a half and his noise exposure was between 1969-1970. At the outset, it is unclear whether the May 1970 audiogram cited by the examiner was given in American Standards Association (ASA) units or using International Standards Organization units. Historically, when interpreting audiometric data from STRs, Service Departments changed from using ASA standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. For reference, impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Regarding the May 1969 audiogram, puretone thresholds (converted to ISO units in parenthesis) are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 (20) 0 (10) 0 (10) N/A 0 (5) Left 5 (20) 10 (20) 15 (25) N/A 25 (30) Therefore, the May 1970 audiogram shows that the Veteran experienced some degree of hearing loss in the left ear at the 2000 and 4000 Hertz frequencies and borderline normal hearing at the 500 Hertz frequency in both ears an at the 1000 Hertz frequency in the left ear. Even if the ISO standard was used, there is some degree of hearing loss shown in the left ear at 4000 Hz. Furthermore, to the extent that the examiner relied on the May 1970 whisper test administered at separation, it is well-established that a whisper voice test is not an accurate measure of hearing acuity. Moreover, STRs from May through August 1970 show that the Veteran complained of left earache, pain in both ears, and difficulty hearing. He was diagnosed with left ear otitis and received ear irrigation treatment. See STRs dated May 6, 1970, May 8, 1970, and August 13, 1970. Regarding the claim for tinnitus, the July 2011 examination report is ambiguous as to whether the Veteran reported tinnitus onset from one-and-a-half years of age or instead that his tinnitus began one-year-and-a-half after service. However, the former possibility is inconsistent with other evidence. In this regard, the Veteran’s May 1969 entrance examination provides no evidence of preexisting tinnitus and an audiogram administered at entrance shows that hearing was within normal limits. In light of the above, the July 2011 examiner may have relied on inaccurate factual premises regarding the Veteran’s medical history and failed to consider pertinent evidence of record. Accordingly, remand is warranted for a new VA examination and opinion for the Veteran’s bilateral hearing loss and tinnitus. On remand, the examiner should also elicit lay evidence regarding onset of bilateral hearing loss and tinnitus symptoms and whether such symptoms were continuous from service. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and anxiety NOS. During the period on appeal, the Veteran received VA examinations for his psychiatric disabilities in July 2011, May 2013, and March 2020. The May 2013 and March 2020 examinations did not yield any psychiatric diagnoses. However, the July 2011 psychiatrist diagnosed the Veteran with anxiety disorder NOS. Nonetheless, that psychiatrist failed evaluate whether the anxiety disorder NOS was related to service. VA treatment records show that the Veteran also has a diagnosis by a psychiatrist of depressive disorder. See VA psychiatry telehealth consultation note dated May 30, 2013. Additionally, VA treatment records list adjustment disorder with depressed mood and anxiety as active problems. One VA physician described the Veteran’s depression symptoms as having “PTSD-like features.” VA primary care note dated May 20, 2013. Notably, in opining that the Veteran did not have a diagnosis of PTSD or any other psychiatric disability, the March 2020 psychiatrist failed to use the standardized disability benefits questionnaire (DBQ) for PTSD. The examination report contains no references or discussion of the Veteran’s claimed stressors or the Veteran’s prior diagnoses of anxiety disorder and depressive disorder. Regarding his claimed PTSD stressors – all related to combat – the Veteran has reported the loss of a close friend who was killed during a helicopter patrol, along with all other personnel on board, by enemy fire. He has also reported a friendly fire incident in which three soldiers were killed and trauma from being constantly bombarded by enemy mortar attacks. See May 2013 VA examination report. In July 2012 statements, the Veteran and his spouse reported symptoms of social isolation, anxiety, flashbacks, nightmares, sleep disruption, and avoidance of crowds and noisy environments. In his statement, the Veteran gave additional information about his stressors. Regarding the friendly fire incident, the Veteran reported that he had been previously assigned to the mortar team in question, which suffered several dead and seven injured. He indicated fear of flying after his friend was killed on a helicopter patrol. See July 2012 statements by the Veteran and his spouse. Finally, the Veteran’s treatment records show that he sought mental health treatment as early as 1975. A document from the Virgin Islands of the United States, Department of Social Welfare reflects that the Veteran had a diagnosis of “mental depression” from January 1975. Notably, a doctor of internal medicine in October 1985 noted that the Veteran was “suffering of severe nervousness brought upon during his service in the Vietnam War…” Dr. R.A.S., October 1985 letter. Based on the above, as no examiner has evaluated whether the Veteran may have an acquired psychiatric diagnosis other than PTSD that is related to service, remand is warranted for a new VA examination that addresses this deficiency. Moreover, there is no evidence that any examiner considered the July 2012 statements of the Veteran and his wife or the Veteran’s psychiatric records from the 1970s and 1980s. Furthermore, in light of the March 2020 psychiatrist’s errors and upload of numerous relevant VA treatment records since the May 2013 VA examination, on remand, the examiner should also consider whether the Veteran has a diagnosis of PTSD that is related to service. Finally, review of VA treatment records revealed an untranslated section of a May 2013 VA telehealth psychiatry consultation. The untranslated portion relates to “trauma” during the Veteran’s military service. Accordingly, on remand, the RO should also obtain a translation of this statement. The matters are REMANDED for the following action: 1. Translate the Spanish portion of a VA psychiatry telehealth consult dated May 30, 2013, located on page 66 of CAPRI records dated between June 2000 and June 2015. 2. Send another letter and stressor questionnaire to the Veteran requesting that he provide details regarding his claimed in-service stressors. If the Veteran returns the questionnaire, attempt to corroborate the Veteran’s claimed in-stressors and document any action taken in this regard. 3. Thereafter, schedule the Veteran for a VA examination for his bilateral hearing loss disability and tinnitus. The examiner must review the claims file, including a copy of this Remand, and indicate that the claims file has been reviewed. A rationale for all opinions should be provided. The examiner should opine whether the Veteran’s bilateral hearing loss and/or tinnitus at least as likely as not (a 50 percent probability or greater) had onset during, or are otherwise related to, active service. The examiner should consider the Veteran’s history of noise exposure as an infantryman serving in Vietnam, including his reports of regular exposure to mortar fire. The examiner should attempt to elicit statements from the Veteran regarding onset and continuity of the bilateral hearing loss and tinnitus symptoms. Furthermore, the examiner should address the following STR evidence in the opinion: (a.) The May 1970 audiogram, to include whether it was conducted under ISO-ANSI or ASA units, as noted above. (b.) May 6, 1970 and May 8, 1970 STR revealing symptoms of pain in the ears and problems hearing and a subsequent diagnosis of left otitis. (c.) An August 13, 1970 showing continued earache requiring irrigation of the left ear. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disability, to include PTSD, depressive disorder, and anxiety NOS. The examiner must review the claims file, including a copy of this Remand, and indicate that the claims file was reviewed. The examiner should attempt to elicit statements from the Veteran regarding his claimed stressors and onset and any continuity of symptoms. The examiner should apply the PTSD criteria in the DSM-5 and state whether the Veteran has a diagnosis of PTSD that is, at least as likely as not (a 50 percent probability or greater), related to any of his claimed stressors. 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 service. The examiner should address the following in the opinion: (a.) The July 2011 VA examination report containing a diagnosis of anxiety NOS. (b.) A diagnosis of depressive disorder by a VA psychiatrist in a May 30, 2013 VA psychiatric telehealth consult note. (Continued on the next page)   (c.) The July 2012 statements by the Veteran and his spouse giving symptoms of social isolation, anxiety, flashbacks, nightmares, sleep disruption, and avoidance of crowds and noisy environments and additional information regarding the Veteran’s claimed stressors. (d.) The Veteran’s January 1975 diagnosis of “mental depression” and Dr. R.A.S.’s October 1985 letter linking the Veteran’s “nervousness” to his experiences during the Vietnam War. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.