Citation Nr: 21029702 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-54 602 DATE: May 14, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for tinnitus is granted. New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for hearing loss is granted. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is granted. New and material has not been submitted to reopen a claim of entitlement to service connection for PTSD and, as such, the claim is denied. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in November 2011, the RO denied service connection for tinnitus, hearing loss, PTSD, and bipolar disorder. The Veteran was notified of the decision, filed a notice of disagreement with respect to the tinnitus, PTSD, and bipolar claims, but failed to perfect the appeal to the Board. 2. Evidence obtained since the November 2011 rating decision is new and raises a reasonable possibility of substantiating the claim of service connection for tinnitus, hearing loss, and bipolar disorder. 3. Evidence added to the record since the final November 2011 denial for PTSD is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for PTSD. 4. Resolving all reasonable doubt in the Veteran's favor, the evidence of record shows an acquired psychiatric disorder, other than PTSD, is attributable to the Veteran's military service. CONCLUSIONS OF LAW 1. The November 2011 RO decision that denied the claims of entitlement to service connection for tinnitus, bilateral hearing loss, PTSD, and bipolar disorder is final. 38 U.S.C.§ 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. New and material evidence has been received to reopen the claim for service connection for bipolar disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. New and material evidence has not been received to reopen the claim for service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 6. The criteria for service connection for an acquired psychiatric disorder, other than PTSD, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to August 1979. In January 2020, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, in November 2011, the RO issued a rating decision denying entitlement to service connection for tinnitus, bilateral hearing loss, and bipolar disorder on the basis the evidence of record failed to find current diagnoses of the claimed disorders, or any evidence of in-service incurrence. The Veteran filed a notice of disagreement with the November 2011 rating decision for the claims of entitlement to service connection for tinnitus and bipolar disorder only. However, he failed to perfect this appeal to the Board, and the November 2011 rating decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 1. Bilateral hearing loss, tinnitus, and bipolar disorder As noted, the prior November 2011 rating decision denied these claims, in part, on the basis the evidence of record failed to note current diagnoses of these claimed disorders. Since the November 2011 decision, a November 2017 VA Audiological Examination noted diagnoses of bilateral hearing loss and tinnitus, and a February 2020 private opinion that attributes these disorders to service. With respect to the claimed acquired psychiatric disorder, other than PTSD, a March 2015 VA treatment record includes a diagnosis of bipolar disorder, and a February 2020 private psychological assessment includes additional diagnoses of depressive disorder and anxiety disorder, that the psychiatrist attributes to the Veteran's military service. As such, the Board finds that the evidence submitted since the November 2011 prior denial relates to previously unestablished facts necessary to substantiate the Veteran's claims. Reopening of the claims for service connection for tinnitus, hearing loss, and bipolar disorder (hereinafter, an acquired psychiatric disorder, other than PTSD) is accordingly warranted. 2. PTSD In denying the Veteran's claim for service connection for PTSD in the prior November 2011 rating decision, the RO noted that the evidence of record does not show in-service treatment or diagnosis of PTSD, and there was no evidence of post-service treatment or diagnosis of PTSD. The evidence received since the November 2011 rating decision includes additional VA treatment records, a February 2020 private psychological assessment, and additional statements from the Veteran submitted in support of his claim. The additional VA treatment records note only the Veteran's bipolar disorder. More importantly, the February 2020 private psychological assessment, submitted in support of his claim, fails to include a diagnosis of PTSD. In fact, Dr. Q.S. specifically noted that the Veteran did not demonstrate any symptoms or signs of PTSD. See February 2020 Private Psychological Assessment. The Board notes the Veteran submitted a stressor statement in support of PTSD indicating that he had a mental blow out, saw two soldiers killed near the DMZ on his birthday, and another solider had his head cut off after walking behind the rotor blades of a helicopter. See March 2015 Statement in Support of Claim for PTSD. However, a September 2015 VA memorandum to the Joint Services Record Repository Center (JSRRC) failed to confirm the occurrence of these stressors. Nevertheless, despite the Veteran's belief that he suffers from PTSD as a result of the reported in-service incidences, there is no evidence that PTSD is currently diagnosed in accordance with the DSM 5 to support the Veteran's contention. Consequently, there is no evidence of record indicating the Veteran suffers from PTSD that is due to his military service. As there are no new contentions or evidence to support the claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. Service Connection 3. Acquired psychiatric disorder The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder that he alleges is due to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). As an initial matter, the Board concludes that the Veteran has current diagnoses of bipolar disorder, persistent depressive disorder, generalized anxiety disorder, and polysubstance dependence in sustained remission (see February 2020 Private Examination, Dr. A.S.). The Veteran's service treatment and service personnel records are silent as to any complaints or treatment for a psychiatric disorder during service. Following service, the Veteran's VA treatment records note several instances of mental health treatment, but do not contain any etiological opinions. The Veteran's military personnel records show that the Veteran was honorably discharged in August 1979 following two Article 15 punishments not resulting in court-martial convictions. The personnel records reflect that the Veteran exhibited poor attitude, lack of motivation, lack of discipline, failed to demonstrate promotion potential, substandard performance, and an inability to accept instructions and directions. In support of his claim, the Veteran submitted a private psychological assessment dated in February 2020 and authored by a licensed psychologist, Dr. A.S. Dr. A.S. provided the above noted diagnoses and concluded that the described symptoms more likely than not began during his military service. The Board notes the private psychological assessment was based on an interview with the Veteran, and a review of the Veteran's claims file. There are no other etiological opinions of record to rebut the findings of the February 2020 private examination. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Thus, entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is granted. REASONS FOR REMAND 1. Back disorder The Veteran is seeking service connection for a back disorder that he believes is due to his military service. Specifically, he states that he injured his back while carrying a 60-pound duffle bag on and off a truck. See January 2020 Board Hearing Transcript. The Veteran's VA treatment records do not contain any diagnoses or complaints of pain pertaining to the lower back, but they do reflect diagnoses pertaining to the cervical spine, including cervicalgia and cervical spondylosis. In support of his claim, a February 2020 statement from Dr. M.F. attributes the Veteran's reported "upper back pain" to his military service. However, Dr. M.F. also fails to specifically diagnose either an upper or lower back disorder, or find that the reports of pain result in functional limitation. Given that this case satisfies McLendon, a remand is required for a VA examination as to the nature and etiology of the claimed disorders. 2. Hearing loss and tinnitus The Veteran is claiming entitlement to service connection for bilateral hearing loss and tinnitus that he believes is due to his exposure to acoustic trauma during service. Specifically, he testified in January 2020 that he never wore earplugs and was always around helicopters. See January 2020 Board Hearing Transcript. In November 2017, the Veteran was provided a VA audiological examination, which confirmed diagnoses of bilateral hearing loss and tinnitus. However, the VA examiner concluded that the Veteran's military occupational specialty, military supply specialist, had a low probability of noise exposure and, therefore, the diagnosed disorders were less likely than not due to service. In February 2020, the Veteran submitted an etiological opinion from Dr. M.F., who the Board notes is a Fellow of the Academy of Surgeons (FACS), not an audiologist. Dr. M.F. concluded that the Veteran was exposed to acoustic trauma and his diagnosed disorders were at least as likely as not due to service. See February 2020 Statement from Dr. M.F. However, as there is no rationale provided, the Board finds this opinion is of limited probative value. Additionally, the Veteran submitted medical treatise information showing a purported correlation between age related hearing loss and early noise exposure. See Medical Treatise Information, received March 2020. The Board finds that a VA examination and opinion regarding the etiology of the diagnosed bilateral hearing loss and tinnitus is required in light of the additional statements and evidence submitted since the November 2017 VA audiological examination. Additionally, in December 2019, the Veteran requested that VA obtain information relating to the November 2017 VA examiner's credentials. In Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit clarified that although there is a presumption of competence, if the veteran challenges the competence of the medical examiner, VA must "satisfy its burden of persuasion as to the examiner's qualifications." Id. Therefore, remand is required for the Board to furnish the curriculum vitae and other information about the qualifications of the November 2017 medical examiner as part of VA's duty to assist. Id. The matters are REMANDED for the following action: 1. Obtain any additional, relevant VA or private treatment records not currently associated with the claims file, dating from November 2017 to the present. 2. Then, send the Veteran's attorney the curriculum vitae and other information about the qualifications of the November 2017 VA medical examiner. 3. Schedule the Veteran for a VA examination concerning his back claim. A complete rationale for all opinions offered must be provided. The examiner is asked to determine the following: (a.) Identify any and all currently diagnosed upper and/or lower back disorders, to include whether the reported pain results in functional impairment. (b.) Then, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any upper/ lower disorder is related to service, to include the Veteran's reports of carrying a 60-pound bag on and off trucks. The examiner is instructed to review all pertinent records associated with the claims file, to include the private opinion from Dr. M.F. dated in February 2020. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology, such as pain. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Then, afford the Veteran a VA audiological examination to determine the etiology of his tinnitus and bilateral hearing loss disability. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. The examiner must also review the claims file in its entirety. After examining the Veteran and reviewing the entire record, the examiner should provide an opinion responding to the following questions: (a.) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's bilateral hearing loss disability began during or is etiologically related to his military service? Why or why not? (b.) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's tinnitus began during or is etiologically related to his military service? Why or why not? The examiner must consider and include in the opinion the findings of the March 2020 medical treatise information concerning age-related hearing loss and early noise exposure, and the opinion provided by Dr. M.F. dated in February 2020. A complete and separate rationale for each opinion is required. If the examiner is unable to provide any opinion without speculation, he or she must explain why this is so. The examiner is informed that any opinion based solely on the lack of evidence of hearing loss during or at separation from service is inadequate. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED