Citation Nr: 21040310 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-45 798 DATE: July 3, 2021 ORDER The claim of entitlement to service connection for an acquired psychiatric disability does not require new and material evidence because relevant service department records, which had been previously available, were associated with the file after VA first considered the claim. Service connection for tinnitus is granted. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability is remanded. The claim of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's claim to service connect an acquired psychiatric disability, PTSD, was last denied in a May 2004 rating decision. He did not appeal that decision. Since then, the Veteran obtained and submitted a report from the Department of the Army regarding significant activities of the Veteran's battalion during his service in Vietnam, which remedies the defects of the prior claim. 2. His tinnitus incepted during service. CONCLUSIONS OF LAW 1. Relevant service department records that existed and were available at the time of his previous claims were associated with his file after his claims were decided in April 2005 and January 2009, and therefore new and material evidence is not required to reopen the claim. 38 U.S.C. §§ 5107(b), 7105; 38 C.F.R. §§ 3.156, 20.1103; Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). 2. The criteria are met for service connection for tinnitus. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to December 1960. This appeal is from December 2013 and January 2015 rating decisions. The Board notes the Veteran was scheduled to provide testimony at a personal hearing. However, he canceled his request in February 2021, and has not asked for a hearing to be rescheduled. Accordingly, his hearing request is considered withdrawn, and the Board may proceed with consideration of these claims. Finally, the Board notes that the Veteran has argued that a claim for a total disability rating due to individual unemployability (TDIU), based on PTSD, is part and parcel of his service-connection claim under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). On the contrary, a claim for TDIU is part and parcel of a claim for an increased rating. Id., at 454-55. Accordingly, as there is no increased rating claim currently pending, the Board does not have the authority to take jurisdiction of a TDIU claim. Further, the AOJ advised the Veteran that the claim was not accepted, in an April 2018 letter, to which he has not raised any objection. The Board notes that, if service connection is granted, then that claim will be considered when determining the initial rating. 1. The claim of entitlement to service connection for an acquired psychiatric disability does not require new and material evidence because relevant service department records, which had been previously available, were associated with the file after VA first considered the claim. In general, VA decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104(b), 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. "New" evidence is evidence not previously submitted to agency decisionmakers. "Material" evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). However, notwithstanding the provisions of Section 3.156(a), at any time after VA issues a decision on a claim, if VA receives or associates relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Indeed, under such circumstances, VA is required to reconsider the claim de novo. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2017); 38 C.F.R. § 3.156(c). This means that when relevant service records are newly associated with a claimant's file, VA has a duty to reconsider the veteran's previously denied claim on the merits. George, 29 Vet. App. at 205 (holding that VA had a duty to reconsider the appellant's 1997 claim for service connection for PTSD, even though service connection for PTSD was granted in 2007 with an effective date of 2003). The purpose of this exception is to put the veteran in the same position he or she would have been in had VA considered the records in the first place. Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). The term "relevant" in the context of section 3.156(c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor, 869 F.3d at 1368-69. Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not "relevant" within the meaning of 38 C.F.R. § 3.156(c)(1). Id. at 1368-69 citing Blubaugh, 777 F.3d at 1314. Here, the Veteran's initial claim for service connection for PTSD was denied in May 2004. The AOJ (agency of original jurisdiction) indicated the record did show service in Vietnam and that there was a VA examination report that diagnosed PTSD based on the Veteran's reports of seeing his friends killed and injured. However, the decision noted that the record did not show he was involved in combat operations, nor did it otherwise corroborate any specifically alleged stressor. He did not appeal that decision. The Board notes that his full personnel file has not been associated with his claims file; rather, specific pages were requested and associated with the file when it was considered in 2004. The records in evidence at that time showed he served in Vietnam with the 168th Engineer Combat Battalion from April 1967 to April 1968. Since then, the Veteran obtained and submitted a copy of an Operational Report Lessons Learned, Headquarters, 168th Engineer Combat Battalion, period ending 31 July 1967. This report discusses the time period from May 1, 1967, to July 31, 1967, and their general mission of cantonment construction. It details the number of landmines detonated (56) and contacts made with enemy forces resulting in fire fights (5), and notes that it was "obvious" that security failed to adequately sweep the area prior to clearing operations. It notes that control of the area was problematic due to a lack of communication equipment. In regard to the soldiers clearing the area, it notes that plow operators were under constant exposure to sniper fire and ground attack, and that they were not to do their work unless wearing flak jackets and steel helmets. Finally, it notes that four members of the team were wounded. The claim was previously denied on the basis that the stressor was not corroborated or shown by the record. This report submitted by the Veteran is relevant to the reason the claim was denied in the May 2004 decision. Indeed, the AOJ, in the January 2015 rating decision on appeal, noted that the report was new, and that it was now being conceded that he experienced a stressor incident during service or that he had a fear of hostile military or terrorist activity. Lack of stressor was the reason his claim was previously denied. Accordingly, this claim does not require new and material evidence to be reopened, but rather it must be reconsidered on a de novo basis from the date of his original claim. Unfortunately, this claim has not been adequately developed, and requires remand before it may be adjudicated on the merits, as discussed below. 2. Service connection for tinnitus is granted. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts his tinnitus and hearing loss began while in service. He is currently diagnosed with tinnitus. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The AOJ has conceded in-service traumatic noise exposure as a combat engineer. The remaining inquiry is whether there is a relationship to service. The Veteran has consistently reported that it began while in service. Under 38 C.F.R. § 3.309(a), tinnitus is an 'organic disease of the nervous system,' rather than a mere symptom, and considered chronic. Fountain v. McDonald, 27 Vet. App. 258, 273 (2015). As such, it is subject to applicable presumptions, and may be established with evidence of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b) pertaining to continuity of symptomatology only applies to chronic diseases contemplated under § 3.309(a)). Here, the Veteran has credibly and competently reported the onset of tinnitus while in service, which has continued to the present day. The Board finds his statements probative. Accordingly, service connection for tinnitus is granted. REASONS FOR REMAND 1. The claim of entitlement to service connection for an acquired psychiatric disability is remanded. The record shows the Veteran has been diagnosed with PTSD and anxiety disorder, related to incidents during his service in Vietnam. Unfortunately, the diagnoses do not show that they were made in accordance with the DSM-5. The January 2015 VA examiner did not diagnose anything but alcohol use disorder, but did not appear to consider the records showing current treatment and diagnosis for other disabilities. However, before reviewed by another examiner, an attempt should be made to obtain the Veteran's complete service personnel file. 2. The claim of entitlement to service connection for bilateral hearing loss is remanded. The Veteran argues that the VA examination opinions of record (from September and November 2013) are inadequate, and the Board agrees. The November 2013 VA examiner conceded that the Veteran entered service with normal ears. She indicated that the record appeared to show the Veteran had some other ear problem that was causing his hearing loss, but did not discuss that evidence. This report does not adequately address whether it is as likely as not that hearing loss is related to conceded noise exposure during service. The November 2013 VA examiner noted the Veteran had right ear hearing loss at separation, but did not provide any opinion. The Board notes that the Veteran's separation examination shows that the Veteran had right ear hearing loss for VA purposes at his separation examination. His separation examination was conducted in October 1969. The hearing test results are not identified as being ASA or ISO units, and so VA policy is to consider the results under both sets and use the results most advantageous to the Veteran. Hearing loss is considered a disability for VA purposes 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 are 26 decibels or greater. 38 C.F.R. § 3.385. His right ear hearing test results from October 1969 show 30 decibels at 500 Hertz (converted to ISO, 45 decibels), 20 decibels at 1000 Hertz (converted to ISO, 30 decibels), 15 decibels at 2000 Hertz (converted to ISO, 25 decibels), and 30 decibels at 4000 Hertz (converted to ISO, 35 decibels). These converted results meet the criteria for a hearing loss disability at the time of separation. Hearing loss, like tinnitus, is considered a chronic disability. 38 C.F.R. §§ 3.307, 3.309. However, in order to grant service connection based on chronicity, it must have become manifest to a degree of 10 percent or more within the year after separation. It is not clear from the October 1969 test results that they meet the rating criteria for a 10 percent rating, and so a medical opinion must be obtained. See 38 C.F.R. § 4.85. Further, the Veteran has submitted medical articles regarding delayed-onset hearing loss, which should be reviewed and discussed. The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Make an attempt to obtain the Veteran's complete service personnel record file. 3. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that any acquired psychiatric disability is related to his service. The examiner is asked to review the record prior to opining, to which the Board notes that the record shows he has been diagnosed with PTSD, and an anxiety disorder. The examiner is asked to elicit a detailed history from the Veteran. The Veteran reports that he has had symptoms of PTSD since his service in Vietnam as a combat engineer. He reports he saw friends injured and killed. The examiner is asked whether the Veteran has a PTSD diagnosis that conforms with the DSM-5, and if so, whether it is related to his service in Vietnam, including discussion of whether it is related to the fear of hostile military or terrorist activity. In regard to anxiety disorder, the examiner is asked whether he meets the criteria for this, and if so, whether it is as likely as not related to his service. If PTSD or anxiety disorder, or another acquired psychiatric disability, is diagnosed, and found to be related to service, the examiner is asked to comment on whether alcohol use disorder is as likely as not related to that disability. All opinions must be accompanied by explanation. 4. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that hearing loss is related to service. The Veteran's traumatic noise exposure during service has been conceded, and his separation examination shows right ear hearing loss for VA purposes once the units are converted from ASA to ISO. The Veteran's STRs contain a "Rudmose" hearing test at entrance in September 1966. It appears that another "Rudmose" test was conducted in November 1966, and the results were noted on the September 1966 examination. The November 2013 VA examiner opined that the Veteran had normal hearing at entrance, and the Board notes that that he was not found to have defective hearing at entrance. The examiner is asked to discuss "Rudmose" findings, and to make any conversions from ASA to ISO units, if necessary, to support any rendered opinions regarding threshold shifts. His October 1969 separation examination is not marked as ASA or ISO, and so the examiner is asked to consider the results under both standards, and to apply the results that are most beneficial to his claim. In regard to the right ear, the November 2013 VA examiner noted that his separation examination showed right ear hearing loss; after converting the units to ISO, the separation examination shows right ear hearing loss for VA purposes under Section 3.385: (30 decibels at 500 Hertz (converted to ISO, 45 decibels), 20 decibels at 1000 Hertz (converted to ISO, 30 decibels), 15 decibels at 2000 Hertz (converted to ISO, 25 decibels), and 30 decibels at 4000 Hertz (converted to ISO, 35 decibels)). The examiner is asked whether it is as likely as not that this meets the criteria for 10 percent or higher; or, to opine on whether it is as likely as not that current hearing loss is related to the hearing loss shown at separation. In regard to the left ear, his separation examination shows hearing test results as follows: 5 decibels at 500 Hertz (converted to ISO, 20 decibels), 5 decibels at 1000 Hertz (converted to ISO, 15 decibels), 0 decibels at 2000 Hertz (converted to ISO, 10 decibels), and 15 decibels at 4000 Hertz (converted to ISO, 20 decibels). The examiner is asked whether any current left ear hearing loss is as likely as not related to noise exposure during service. If the examiner opines that his hearing loss has other causes, this does not relieve the examiner from providing an opinion on the likelihood that his conceded in-service noise exposure is related to it. The Veteran has submitted two medical articles regarding delayed-onset hearing loss that should be addressed: "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss" by Sharon Kujawa et al., and "Aging after Noise Exposure: Acceleration of Cochlear Synaptopathy in 'Recovered' Ears" by Katherine A. Fernandez et al. All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.