Citation Nr: 21027154 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-21 156 DATE: May 4, 2021 ORDER The Veteran's application to reopen a claim for service connection for bilateral hearing loss is allowed to this extent only. The Veteran's application to reopen a claim for service connection for tinnitus is allowed to this extent only. A disability rating greater than 30 percent for an acquired psychiatric disorder is denied. REMANDED The issue of service connection for bilateral hearing loss is remanded. The issue of service connection for tinnitus is remanded. FINDINGS OF FACT 1. In August 2006, the Veteran was notified that VA denied service connection for bilateral hearing loss and tinnitus. The Veteran was informed in writing of the adverse determinations and his appellate rights and did not submit a notice of disagreement (NOD). 2. The additional documentation submitted since August 2006 decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss. 3. The additional documentation submitted since August 2006 decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim for service connection for tinnitus. 4. The Veteran's acquired psychiatric condition does not result in symptoms that exceed an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The August 2006 decision is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for bilateral hearing loss has been received. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2018); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2020). 3. New and material evidence sufficient to reopen the Veteran's claim for service connection for tinnitus has been received. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2018); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2020). 4. The criteria for a rating of greater than 30 percent, an acquired psychiatric condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.130, Diagnostic Code 9410 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) rating decisions in November 2015 and May 2016 from a Department of Veterans Affairs (VA) regional office (RO). The Veteran appeared at a virtual hearing in December 2020 before the undersigned Veterans' Law Judge. A copy of the transcript has been associated with the claims file. PETITIONS TO REOPEN PREVIOUSLY DENIED CLAIMS Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Whether New and Material Evidence has been Received to Reopen the Claims for Service Connection for Bilateral Hearing Loss and Tinnitus. In August 2006, VA denied service connection for bilateral hearing loss and tinnitus because the evidence did not show the condition occurred in or was caused by service. The Veteran was informed in writing of the adverse decision and did not submit an NOD. New and material evidence pertaining to these issues was not received by VA or constructively in its possession within one year of written notice to the Veteran of the August 2006 decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since August 2006 includes a statement by a private audiologist in June 2015 that indicated the Veteran's exposure to military noise likely played a role in the development of hearing loss and tinnitus. Additionally, an VA opinion obtained in May 2017 indicated the Veteran's tinnitus may be related to his acquired psychiatric condition. This evidence is new because VA. did not previously consider it It is material because it relates to the unestablished element of whether the Veteran's service caused the conditions. As new and material evidence has been received, the Veteran's claims for service connection of bilateral hearing loss and tinnitus are reopened. INCREASED RATINGS Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21. 1. Increased Rating for an Acquired Psychiatric Condition The Veteran's mental disorder is currently rated at 30 percent under the General Rating Formula for Mental Disorders (General Formula). A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This may be due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. The Veteran was granted service-connection for his acquired psychiatric condition effective December 17, 2015, the date VA received his intent to file a claim. The Veteran's treatment records from that date forward are most consistent with the 30 percent rating criteria. The examiner recorded symptoms of a depressed mood, anxiety, and a chronic sleep impairment. The Veteran reported he felt moderately anxious, but his anxiety level would reach "panic level" about twice a week. He indicated he was concerned with PTSD-like symptoms such as flash anger without triggers; however, no such episodes were reported. He did report intrusive thoughts and some hypervigilant behaviors. The Veteran reported passive, fleeting thoughts of death, but without any intent. The examiner did not consider these to represent suicidal ideations. The examiner noted the Veteran appeared to function in the normal intelligence range based on his conversational skills and fund of knowledge. No memory problems were recorded. In October 2016, the Veteran's treatment records note the Veteran was mildly depressed and anxious. He continued to have trouble sleeping. He reported anxiety at a level four or five on a scale of ten but reported he did not have panic episodes. He denied passive or fleeting thoughts of death, suicidal ideations, and homicidal ideations. His thought process was described as "logical". The Veteran's health questionnaire responses indicated that several times a week he had trouble concentrating and decreased interested in activities. At the hearing in December 2020, the Veteran indicated he used to have panic attacks a couple times a week and endorsed a current sleep impairment. He stated medication had been helpful in reducing symptoms as well as meeting with a post-traumatic stress group. The Veteran further stated he felt his condition had been about the same severity since the VA examination. The Veteran stated he works about 36 hours a week delivering papers and drove for a car-dealership between five to 18 hours a week. He had no memory deficits when recounting his great-grand children's names and birthdates. He indicated he completes household chores and errands outside of the house and has good relationships with people outside the home. The signs and symptoms the Veteran endorsed do not result in more than an occasional social and occupational impairment. He reports occasional lack of interest in activities and trouble concentrating. However, he works a fulltime job, has healthy relationships with family, friends, and acquaintances, he has no memory deficits, and reports no suicidal ideations. He has a depressed mood and anxiety, which for part of the period on review resulted in two panic attacks per week. There are no reports of the symptoms reducing his ability to function in an occupational setting. Further, he reports a healthy social life without his symptoms interfering during the period on review. The preponderance of the evidence is against a finding that these symptoms are of the severity, frequency, and duration to produce an occupational and social impairment with reduced reliability and productivity. Instead the evidence indicates the Veteran has had no problem maintaining an occupation and social relationships. There is some evidence the condition was more severe prior to the Veteran's claim being received. He reported his anxiety as a 7 to 9 on a scale of 10 in May 2015. He had inconsistent reports of suicidal ideations, including endorsed thoughts of taking his life in October 2015 and a private medical evaluation in early December 2015 noting suicidal ideations. However, the Veteran has testified that his medication and treatment have significantly improved his condition, and records from the time the claim was filed, forward, do not include this severity of symptoms. Thus, the preponderance of evidence is against incorporating that level of severity into the rating assigned. As such, a rating higher than 30 percent is not warranted. REASONS FOR REMAND Service Connection for Bilateral Hearing Loss and Tinnitus are Remanded. A remand is required to obtain addendum opinions regarding the claims of service connection for hearing loss and tinnitus. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: Addendum opinions are needed regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. The October 2015 examiner's rationale is reliant on the lack of noise exposure in service based on his military occupational specialty (MOS) but does not consider the Veteran's statements regarding exposure to loud noises in service. The Veteran reported in June 2013, that he served on temporary duty (TDY) in Cam Ranh Bay, where his duty station was next to a flight line. The same document notes he was on convoy duty when exposed to an explosion near or in Nah Trang. Also, the Veteran's statements in the March 2016 VA examination for a psychological condition indicated he was present near an explosion at an ammunition storage area in DaNang and an attack on the 6th Convalescence Center in Cam Rahn Bay. Further, the examiner's rationale does not consider whether the Veteran's hearing loss or tinnitus may have been due to the reported perforation of left tympanic membrane during service. A July 2006 examination indicated the Veteran had scaring consistent with such an injury. Finally, the addendum opinion from May 2017 indicates that delayed onset of tinnitus is often associated with psychological trigger factors. The Veteran is service connected for an acquired psychiatric condition; thus, the examiner should have provided an opinion as to whether the Veteran's tinnitus is secondary to his psychiatric condition. Remand Directives Follow: 2. Advise the Veteran that he may submit any additional medical and non-medical evidence relating to his claimed disabilities that is not already in VA's possession, including any information that may support his statements about exposure hazardous noise in service, such as statements by others who can corroborate his presence at the events described. 3. Associate with claims file, all records in VA's possession relating to the treatment of Veteran's claimed disabilities. 4. After any outstanding evidence is associated with the claims file, return the claims file to the October 2015 VA examiner, and request he re-review the claims file and respond to the inquiry below. If the examiner is not available, arrange for another appropriately-qualified VA examiner to provide an addendum medical opinion to assist in determining the etiology of the Veteran's bilateral hearing loss and tinnitus. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinion: (a.) Whether the Veteran's hearing loss was caused by his service, to include exposure to hazardous noise and/or a twice punctured tympanic membrane with scaring. (b.) Whether the Veteran's tinnitus was caused by his service, to include exposure to hazardous noise and/or a twice punctured tympanic membrane with scaring. (c.) Whether the Veteran's tinnitus was caused by the Veteran's service-connected psychological condition. (d.) Whether the Veteran's tinnitus was aggravated, made worse, by the Veteran's service-connected psychological condition. The examiner must review the entire record in conjunction with rendering the requested opinion. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. 5. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, 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.