Citation Nr: 22010751 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 20-01 985 DATE: February 24, 2022 ORDER Reopening of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. Reopening of entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. In an August 2017 decision, the Board denied reopening of entitlement to service connection for PTSD; at the time of the August 2017 decision, the evidence did not substantiate a diagnosis of PTSD. 2. The evidence associated with the claims file subsequent to the August 2017 decision relates to the unestablished fact necessary to substantiate service connection for psychiatric disability, namely, PTSD; is neither cumulative nor redundant of evidence already of record; and raises a reasonable possibility of substantiating service connection for a psychiatric disability. 3. In an August 2017 decision, the Board denied service connection for tinnitus; at the time of the August 2017 decision, the evidence substantiated (1) a current disability, (2) and an injury or disease in service, but did not substantiate (3) a nexus between a current disability and service. 4. The evidence associated with the claims file subsequent to the August 2017 decision does not contain relevant service department records, which existed but were not of record at the time of that decision; does not relate to any unestablished fact necessary to substantiate service connection for tinnitus; is cumulative and/or redundant of evidence already of record; and does not raise a reasonable possibility of substantiating service connection for tinnitus. CONCLUSIONS OF LAW 1. The August 2017 decision is final with respect to entitlement to service connection for PTSD. 38 U.S.C. § 7105. 2. The criteria for reopening the claim of entitlement to service connection for PTSD are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3. The August 2017 decision is final with respect to entitlement to service connection for tinnitus. 38 U.S.C. § 7105. 4. The criteria for reopening the claim of entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from April 1966 to February 1968. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Laws and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Service connection for posttraumatic stress disorder requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. In an April 2014 decision, VA denied service connection for PTSD and tinnitus. In a February 2015 decision, VA denied reopening of the claims. In a March 2016 decision, VA denied reopening of the claim for PTSD. In an August 2017 decision, VA denied reopening of both claims. Although notified of his right to appeal the decision, the Veteran did not appeal it within one year of its issuance. The August 2017 decision is the last final denial of the claim. VA may reopen any denied and final claim if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For claims to reopen decided prior to February 19, 2019, new evidence is defined as evidence not previously submitted to agency decision makers and 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it 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). This affects the finality of the prior denial. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file 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). This also affects the finality of the prior denial. To reopen a denied and final claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. For instance, where a prior denial was based on both (1) the lack of current disability, and (2) the lack of an established nexus, newly submitted evidence of a current disability is, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the August 2017 decision, the evidence established that the Veteran served in Vietnam and experienced fear of hostile military or terrorist activity. The evidence also substantiated a mental disorder diagnosis. The evidence did not substantiate a diagnosis of PTSD, and did not relate any other mental disorder diagnosis to service. The evidence received since the August 2017 decision includes several medical records indicating diagnoses of PTSD. Accordingly, as this constitutes an unestablished fact at the time of the August 2017 decision, and as the evidence raises a reasonable possibility of substantiating the claim, the Board concludes that reopening is warranted. The reopened claim will be addressed on the merits below. Regarding tinnitus, the evidence in August 2017 established that the Veteran had exposure to loud sounds in service. This does not necessarily equate to acoustic trauma, a term which implies injury to hearing mechanisms. See American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). The evidence also established a diagnosis of tinnitus of recent onset. An April 6, 2017, audiology consult notes a history of constant bilateral high-pitched tinnitus since "almost 4 months ago." The evidence did not substantiate a relationship between noise exposure in service and current tinnitus. The evidence received since the August 2017 includes VA primary care notes in October 2017, February 2018, June 2018, July 2018, September 2018, October 2018, May 2019, October 2019, July 2021, and October 2021, reporting that examination of the ears was negative for tinnitus. The evidence also includes a November 2021 VA audiology consult which notes complaint of tinnitus for the past several years. No etiology opinion was provided because none was requested. A privately provided DBQ dated February 2020 includes a diagnosis of peripheral vestibular disorder, and sensorineural hearing loss. There is no diagnosis of tinnitus. The examiner commented that he did not have the expertise to evaluate the diagnosed condition. Thus, the only evidence pertinent to the claim is cumulative and redundant of evidence previously of record. VA knew and accepted at the time of the August 2017 decision that the Veteran had tinnitus. The evidence received since then does not address a relationship between tinnitus and service. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for tinnitus has not been received. As such, the August 2017 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen either of the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Board has reopened the claim of entitlement to service connection for an acquired psychiatric disability on the basis of new evidence establishing a diagnosis of PTSD. While the evidence suggests an association with the Veteran's experiences in Vietnam, VA regulations require specific findings. The April 2014 decision denied the claim based on the lack of treatment in service to support such an association. Here, while the Veteran has alleged that he engaged in combat with the enemy, VA has not verified such engagement. A veteran may still satisfy the requirements for a PTSD stressor if the stressor claimed by the Veteran is related to fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Thus, a medical opinion is necessary to make this determination. The matter is REMANDED for the following action: 1. Schedule an appropriate VA examination by a VA psychologist or psychiatrist, or one contracted by VA, to determine the nature and etiology of the Veteran's claimed PTSD. The relevant documents in the claims file should be made available to the VA examiner. All indicated tests and studies should be accomplished. The VA examiner is requested to offer an opinion as to whether a diagnosis of PTSD is supported. The examiner is asked to consider the conflict in the medical evidence on this point, including the September 2013 VA examination, which includes a statement that the Veteran's history supports a PTSD diagnosis, but medications limit his experience of symptoms. If a PTSD diagnosis is rendered, the VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's fear of hostile military or terrorist activity is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to this claimed stressor. If any other mental health diagnosis is rendered, offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the diagnosis is related to service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.