Citation Nr: 21041627 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-49 324 DATE: July 9, 2021 ORDER New and material evidence has not been received to reopen the claim for service connection for tinnitus. New and material evidence has not been received to reopen the claim for service connection for hearing loss. New and material evidence has not been received to reopen the claim for service connection for posttraumatic stress disorder (PTSD). REMANDED Service connection for an acquired psychiatric disorder, other than PTSD, to include anxiety and depression, is remanded. FINDINGS OF FACT 1. A January 2009 rating decision denied the Veteran's claim for service connection for tinnitus and hearing loss. The Veteran did not appeal the decision. 2. The Veteran did not provide any additional evidence to reopen the claims of service connection for tinnitus and hearing loss. 3. An August 2007 rating decision denied the Veteran's claim for service connection for PTSD. The Veteran did not appeal the decision. 4. The Veteran did not provide any additional evidence to reopen the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The January 2009 rating decision denying service connection for tinnitus and hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the service connection claim for tinnitus and hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 2007 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the service connection claim for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to May 1977. The matters on appeal come from a September 2014 rating decision. In November 2018, the Board remanded these claims for further records development, as well as recharacterized a matter as an original claim for service connection for an acquired psychiatric disability, to include anxiety and depression. The Board finds substantial compliance with the remand directives. New and Material Evidence A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Thus, the Board's task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. 1. Tinnitus 2. Hearing loss The Veteran seeks to reopen claims for service connection for tinnitus and hearing loss. A January 2009 rating decision denied the Veteran's claim for service connection for tinnitus and hearing loss due to no nexus. The Veteran was informed of the decision in writing and did not appeal the decision or submit pertinent evidence during the appeal period. Therefore, this rating decision is final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the January 2009 final rating decision, no new and material evidence was received; the Veteran filed the claim to reopen without providing any additional evidence. Notably, the RO sent the Veteran a duty to assist letter in July 2014 that clearly set out the basis of the prior denials of service connection for tinnitus and hearing loss, and explained that he needed to submit new evidence to support a nexus, but no evidence was ever submitted. Therefore, the Board finds that new and material evidence has not been received to reopen these claims. As to contentions in the January 2015 Notice of Disagreement, VA was not required to conduct an examination because new and material evidence was not received sufficient to reopen the claims for tinnitus and hearing loss. Notwithstanding this, a VA examination was provided in October 2020. In the context of claims to reopen, providing an examination is a conditional or provisional duty. Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see 38 C.F.R. § 3.159(c)(4)(iii). Accordingly, in a case such as this one where no new and material evidence has not been submitted to reopen a claim, VA's duty to provide a new examination is extinguished and the issues raised by the Notice of Disagreement about not providing an examination are incorrect. Woehlaert, 21 Vet. App. at 463. The October 2020 VA examination found no nexus as to left ear hearing loss and tinnitus. The examination further found no diagnosis of right ear hearing loss. 38 C.F.R. § 3.385. Consequently, the VA-generated evidence does not support reopening these claims. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Based on the forgoing, the Board finds that new and material evidence has not been submitted and the claims for service connection for tinnitus and hearing loss are not reopened. 3. PTSD The Veteran seeks to reopen a claim for service connection for PTSD. An August 2007 rating decision denied the Veteran's claim for service connection for PTSD due to no corroboration of an in-service stressor. In pertinent part, the RO had requested additional information to verify whether the warehouse the Veteran worked at stored dead bodies. The Veteran was informed of the decision in writing and did not appeal the decision or submit pertinent evidence during the appeal period. Therefore, this rating decision is final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the August 2007 final rating decision, no new and material evidence was received; the Veteran filed the claim to reopen without providing any additional evidence. Notably, the RO sent the Veteran a duty to assist letter in July 2014 that clearly set out the basis of the prior denial of service connection for PTSD, and explained that he needed to submit new evidence to support an in-service stressor, but no evidence was ever submitted. Therefore, the Board finds that new and material evidence has not been received to reopen this claim. As to contentions in the January 2015 Notice of Disagreement, there is nothing in the STRs or military personnel file to support an in-service stressor. As to contentions in the January 2015 Notice of Disagreement, VA was not required to conduct an examination because new and material evidence was not received sufficient to reopen the claim for PTSD. In the context of claims to reopen, providing an examination is a conditional or provisional duty. Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see 38 C.F.R. § 3.159(c)(4)(iii). Accordingly, in a case such as this one where no new and material evidence has not been submitted to reopen a claim, VA's duty to provide a new examination is extinguished and the issues raised by the Notice of Disagreement about not providing an examination are incorrect. Woehlaert, 21 Vet. App. at 463. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Based on the forgoing, the Board finds that new and material evidence has not been submitted and the claim for service connection for PTSD is not reopened. REASONS FOR REMAND 4. Acquired psychiatric disorder other than PTSD, to include anxiety and depression Review of the record indicates that the Veteran has not been provided with a VA examination to assess the etiology and severity of any acquired psychiatric disorder. Private treatment records indicate a diagnosis of major depression and VA treatment records indicate a diagnosis of severe major depression with psychotic features. The Veteran references being in a warehouse during service where he had visions of seeing things. In light of the presence of a current disability and a plausible nexus to service, the Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and the Veteran should be afforded a VA examination. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination for an acquired psychiatric disorder, to include anxiety and depression. The examiner must review the claims file. Is any diagnosed acquired psychiatric disorder at least as likely as not related to service, including the Veteran's statements about working in a warehouse and seeing things during service? Provide a rationale to support all medical opinions rendered and adequately document the Veteran's contention as to why he believes he has an acquired psychiatric disorder related to service in the examination report. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.