Citation Nr: 21024234 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-42 684 DATE: April 22, 2021 ORDER New and material evidence having been received, the service connection claim for a low back condition is reopened. New and material evidence having been received, the service connection claim for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depression is reopened. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depression is remanded. FINDINGS OF FACT 1. An unappealed January 2010 and August 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s entitlement to service connections for a low back condition, depression, anxiety, and PTSD based on the determination that the evidence did not show that the Veteran had the claimed conditions in service and/or the nexus was established between the current conditions and in-service complaints. 2. The evidence received since the January 2010 rating decision, to include an October 2016 VA examination report for back conditions and a February 2021 hearing testimony, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran’s service connection claims for a low back condition and an acquired psychiatric disability. 3. There is approximate balance of positive and negative evidence on whether the Veteran’s right ear hearing loss and tinnitus had its onset in service. 4. The preponderance of the evidence is against finding that the Veteran has had sufficient hearing loss in the left ear to qualify as a disability for VA compensation purposes during the pendency of the claim. CONCLUSIONS OF LAW 1. The January 2010 rating decision, which denied the Veteran’s claim of entitlement to service connections for a low back condition, depression, and anxiety is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 2. The August 2010 rating decision, which denied the Veteran’s claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 3. The evidence received since the January 2010 rating decision is new and material, and the claim of entitlement to service connection for a low back condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 4. The evidence received since the January 2010 and August 2010 rating decisions is new and material, and the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety disorder, and depression is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2020). 6. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 7. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and April 2017 rating decisions by the VARO. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. Reopening claims 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 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New evidence” means existing evidence not previously submitted to VA, and “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. 38 C.F.R. § 3.156(a) (2020). 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. Id. In a January 2010 rating decision, the RO previously denied the Veteran’s service connection claim for a low back condition. The Veteran did not appeal this decision timely, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). The Board finds that VA received new and material evidence since the prior final January 2010 rating decision denying the Veteran’s entitlement to service connection for a low back condition. The new and material evidence includes an October 2016 VA examination report for back conditions. The evidence is new as it was not considered at the time of the prior final denial of the Veteran’s claim, and the new evidence is material as it reasonably substantiates the nexus element, which was not established at the time of the prior denial. See January 2010 Rating Decision. Consequently, the Veteran’s claim for service connection for a low back condition is reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). The Board notes that the Veteran previously filed service connection claims for depression, anxiety, and PTSD separately. However, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issues on appeal as a claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety disorder, and depression. In the January 2010 rating decision, the RO previously denied the Veteran’s service connection claim for depression and anxiety. Later, in the August 2010 rating decision, the Veteran’s service connection claim for PTSD was denied. The Veteran did not appeal these decisions timely, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). The Board finds that VA received new and material evidence since the prior final January and August 2010 rating decisions. The new and material evidence includes the Veteran’s February 2021 hearing testimony. The evidence is new as it was not considered at the time of the prior final denial of the Veteran’s claim, and the new evidence is material as it reasonably substantiates the in-service incurrence and nexus elements, which were not established at the time of the prior denial. See January 2010 and August 2010 Rating Decisions. Consequently, the Veteran’s claim for service connection for an acquired psychiatric disability, to include PTSD, anxiety disorder, and depression is reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). Service connection The Veteran is seeking service connections for bilateral hearing loss and tinnitus. He contends that his current disabilities are due to significant noise exposure and acoustic trauma in service. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1131 (2012). Generally, to establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, a combination of sufficient manifestations to identify the disease entity and sufficient observation to establish chronicity at the time is required. 38 C.F.R. § 3.303(b) (2020). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The U. S. Court of Appeals for the Federal Circuit, however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2020). While hearing loss disability is not a disease listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. As discussed below, the Veteran’s hearing loss disability has been described as sensorineural in nature; hence, the Veteran’s hearing loss, to the extent that they have been shown by the evidence as being disabling, may be considered for service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307 and 3.309. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 (2020). 1. Right ear hearing loss & tinnitus The Board notes that the December 2016 VA audiological examination shows the Veteran’s right ear sensorineural hearing loss, which meets the requirements of 38 C.F.R. § 3.385. The December 2016 VA examiner also noted the Veteran’s report of recurrent tinnitus. The Veteran’s service records do not show any in-service complaints of hearing loss or tinnitus. During the February 2021 hearing, the Veteran testified that he was exposed to significant noises in service from working near huge generators as a combat signaler wireman. He stated that he was not provided with any hearing protections in service. He also testified that a mortar went off nearby him during a live fire mission in training and rang his head, and he began to have ringing in his ears and experienced worsening of hearing since then. He provided that did not have hearing loss or ringing in the ears prior to joining military, but the disabilities developed in service and he has been continuously experiencing them. The Board notes that the Veteran’s service record shows that his military occupational specialty was a combat signaler. The Board finds the Veteran’s testimony regarding his significant military noise exposure with acoustic trauma and the onset of his hearing loss and tinnitus symptoms in service competent and credible and assigns a high probative weight. The December 2016 VA examiner opined that the Veteran’s hearing loss is less likely than not caused by or a result of an event in military. The examiner reasoned that the Veteran’s separation examination indicated normal hearing and he denied hearing loss at the time. The examiner also opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with his hearing loss as tinnitus is known to be a symptom associated with hearing loss. The examiner noted that the Veteran’s report of the onset of ringing in the ears following an exposure to a grenade explosion in service, but failed to address his report when rendering the etiology opinions for his hearing loss and/or tinnitus. As such, the Board cannot assign high probative weight to the December 2016 VA opinions. Based on above, the Board finds that there is approximate balance of positive and negative evidence on whether the Veteran’s right ear hearing loss and tinnitus had its onset and in service. Thus, resolving reasonable doubt in the Veteran’s favor, the Veteran’s entitlement to service connections for right ear hearing loss and tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2020). 2. Left ear hearing loss On December 2016 VA audiological examination, the audiometric testing in the Veteran’s left ear disclosed hearing threshold levels in decibels of 20, 20, 20, 35, and 25, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The Veteran’s Maryland CNC speech recognition scores was 96 percent for the left ear. Thus, the findings from the December 2016 VA audiology examination do not satisfy the criteria for a hearing loss disability under 38 C.F.R. § 3.385. The evidence of record does not contain any other audiometric testing results that satisfy the requirement under 38 C.F.R. § 3.385. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran has had sufficient hearing loss in the left ear to qualify as a disability for VA compensation purposes during the pendency of the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran’s entitlement to service connection for left ear hearing loss is not warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS FOR REMAND As to the Veteran’s service connection claims for a low back condition and an acquired psychiatric disability, the Board finds that further development is necessary prior to final adjudication. 1. Low back condition During the February 2021 hearing, the Veteran testified that he began to receive treatments for his back at Loma Linda VA Medical Center (VAMC) within a year after his separation in 1989. The Board notes that a record request to Loma Linda VAMC was made in March 1997, but the record request was only limited to the records from 1994 to 1995. The Board notes that only the Veteran’s treatment record from Loma Linda VAMC for the later period is associated with the Veteran’s claims file. Thus, on remand, the Agency of Original Jurisdiction (AOJ) should make an effort to obtain the Veteran’s records from Loma Linda VAMC for the period from July 1989 to December 1993. The Veteran underwent a VA examination in October 2016 for back conditions. The examiner noted the Veteran’s diagnosis of degenerative arthritis of the spine and bilateral lower extremities radiculopathy, but opined that the Veteran’s current conditions are less likely than not incurred in or caused by service. The examiner reasoned that the Veteran was seen for a sore back once during service, and no further evidence was noted in service. However, the Veteran’s competent report during the examination about his lower back injury in 1988 while he was participating in war games overseas was not considered for the opinion. The Board notes that the Veteran provided more details of this injury during the February 2021 hearing. He testified that he fell directly on his gear and a M16 on the left side of his lower back while running a large cable on duty while he was in Germany, and he experienced extreme electrical shock that went through his leg after the fall. He stated that he has been having issues with the left side of his back and sciatic nerve in the left side ever since that injury. The Veteran testified that he complained about his back more after leaving Germany, but he was only able to see a medic who gave him muscle relaxers for pain and was never sent to the doctor. Further, the Veteran testified that he was attacked and assaulted by an individual off base during his active duty service period, and he was bitten and scratched during the assault. The Veteran stated that he was able to fight him off, but his back went out with electrical shock down his leg and lower back. He provided that collapsed after the fight and could not walk, so his friend helped him into the house. He testified that he had returned to the base the next day and received muscle relaxers. The Board notes that the Veteran’s service treatment record (STR) noted this assault and his treatment following the assault. See e.g., July 24, 1987 STR (multiple scratch marks on face with human bite impressions on the left scalp and left arm and, tenderness in the left L3-L5 were noted). In conclusion, as the October 2016 VA medical opinion did not adequately addressed the Veteran’s competent and credible accounts of his in-service back injuries, the Board finds that a new medical opinion to determine the etiology of the Veteran’s current low back condition must be obtained prior to final adjudication. 2. Acquired psychiatric disability, to include PTSD, anxiety disorder, and depression The evidence of record contains the Veteran’s complaints, diagnosis, and treatments related to PTSD, anxiety disorder, and depression. The Veteran testified during the February 2021 hearing that he was severely traumatized by his sergeant’s intentional mistreatments of him few months before his separation. He stated that his mental issues had its onset during that time in service, and it has continued throughout his life. The Board notes that the Veteran complained about depressed mood in service. See April 12, 1989 STR (the Veteran was depressed, but not suicidal; no evidence of psychosis noted). Also, the evidence shows that the Veteran was suffering from depression soon after his separation in July 1989. See e.g., October 20, 1989 General Medical Examination, at 3 (“He has depression, obvious depression); October 27, 1989 Report of Medical Examination for Disability Evaluation (diagnosis of depression was noted); See also December 1989 Psychiatric Examination, at 1 (the Veteran first felt he had problems with throwing up and depression two years ago when he was in the military); November 2015 Buddy Statement from E.F. (the Veteran was very different when he returned from service where he seemed distant, withdrawn, quite, and uncharacteristically aggressive). Based on above, the Board finds that the Veteran must be afforded a psychiatric examination to determine the nature and etiology of his current psychiatric disabilities under DSM-V criteria. The evidence only contains history of PTSD and diagnosis of depression under DSM-IV criteria. As such, a remand is required to obtain a psychiatric examination by an appropriate psychiatrist or psychologist in order to make a fully informed decision. Accordingly, the matters are REMANDED for the following action: 1. First, the AOJ should obtain the Veteran’s treatment record from Loma Linda VAMC for the period from July 1989 to December 1993. All record requests and any responses from Loma Linda VAMC must be associated with the Veteran’s electronic claims file. 2. Then, the AOJ must obtain a medical opinion from an appropriate medical examiner regarding the Veteran’s service connection claim for a low back condition. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested opinion. (a.) The examiner must opine whether the Veteran’s current low back condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner specifically is asked to consider the Veteran’s February 2021 hearing testimony regarding his in-service low back injuries where 1) he fell directly on his gear and a M16 on the left side of his lower back while running a large cable on duty and experienced extreme electrical shock   that went through his leg, and 2) his back went out again with electrical shock down his leg and lower back while fighting off an individual during a serious physical assault. See e.g., July 24, 1987 STR (multiple scratch marks on face with human bite impressions on the left scalp and left arm and, tenderness in the left L3-L5 were noted). The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) The examiner must provide a complete written rationale for any opinion offered. Also, importantly, if the examiner cannot provide an opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond based on given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. The AOJ must schedule an examination by an appropriate psychiatrist or psychologist to determine the nature and etiology of the Veteran’s acquired psychiatric disability, to include PTSD, anxiety disorder, and depression under DSM-V criteria. The examiner must review the Veteran’s claims file and a copy of this   REMAND order in conjunction with the examination. (a.) The examiner must identify the Veteran’s current diagnoses of his psychiatric disability under DSM-V criteria. (b.) The examiner must opine whether the Veteran’s current psychiatric disability is at least as likely as not (more than 50 percent or more probability) related to his active duty service or had its onset in service. (c.) The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (d.) If a diagnosis of PTSD under DSM-V criteria is warranted, the examiner must specify the specific in-service stressors that led to the diagnosis and whether it is a result of fear of hostile military or terrorist activity. (e.) The examiner must provide a complete written rational for any opinion rendered. 4. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.