Citation Nr: 22018643 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 14-09 211A DATE: March 30, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric condition, including schizophrenia, is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric condition, including schizophrenia, is remanded. FINDING OF FACT 1. A September 1991 rating decision denied service connection for schizophrenia; the Veteran did not appeal this denial; and no new evidence was submitted within the one-year appeal period following the issuance of that decision. 2. Evidence received since the September 1991 rating decision is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric condition. 3. The evidence is at least evenly balanced as to whether the Veteran's current tinnitus had its onset during active military service. CONCLUSION OF LAW 1. The criteria for reopening the previously denied claim of service connection for an acquired psychiatric condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1981 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened, and the former disposition reviewed. 38 U.S.C. § 5108. 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). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the language of 38 C.F.R. § 3.156 (a) creates a low threshold, and the Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that a September 1991 rating decision denied the Veteran's claim of service connection for a neck disability. The Veteran did not appeal the September 1991 rating decision. Moreover, new evidence was not added to the claims file in the first year after the September 1991 rating decision. 38 C.F.R. § 3.156(b). Accordingly, the Board finds that the September 1991 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran refiled the claim in July 2009. In a September 2010 rating decision, the claim remained denied for failure to submit new and material evidence. The Veteran appealed the decision in September 2011. Since the final decision in September 1991, the VA received evidence which may establish a nexus between the Veteran's current disabilities and service. As this evidence is new and was not of record at the time of the prior denial, the Board finds that it was not previously considered by agency decision makers. The Board also finds that this new evidence is not cumulative and redundant of evidence already of record. And, because a nexus between the Veteran's current disabilities and service is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)), the Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection an acquired psychiatric condition, and therefore raises a reasonable possibility of substantiating such a claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence constitutes new and material evidence, and the claim is reopened. 38 U.S.C. § § 5108, 7104; 38 C.F.R. § 3.156. Entitlement to service connection for tinnitus. Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). The Veteran contends that his tinnitus had its onset during active service and was caused by exposure to hazardous noise as an infantryman. The Veteran's DD 214 indicates that the Veteran served as an infantryman and received qualification badges for Rifle M-16 MKM and hand grenade experience. The Veteran's military occupation is noted to have a high probability of hazardous noise exposure. The evidence clearly shows that the Veteran has a current diagnosis for tinnitus. Additionally, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds no reason to question the Veteran's accounts that he experiences ringing in his ears. The Veteran has reported that his tinnitus began early in active service. The Veteran is also considered competent to report experiencing tinnitus during active military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran's MOS, service history, and current diagnosis are consistent with a finding that his tinnitus had onset in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In considering the evidence discussed above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's tinnitus had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). REASONS FOR REMAND Regrettably, the Board finds that additional development is necessary before the Veteran's claims for bilateral hearing loss and an acquired psychiatric condition can be adjudicated. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is caused by or related to acoustic trauma during active service. The RO denied the Veteran's claim for bilateral hearing loss because the Veteran's records are negative for audiometric findings that show that the Veteran's hearing impairment met the auditory thresholds necessary to be considered a disability for VA purposes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An audiological examination performed in July 2013 indicates that the Veteran may now have audiometric findings which now meet the above criteria. Considering the above, the Veteran should be afforded an audiological examination to assess the current severity of his left ear hearing loss. Entitlement to service connection for an acquired psychiatric condition, including schizophrenia. The Veteran contends that his schizophrenia had its onset during active service following the unexpected death of his twelve-year-old brother. In a May 1981 Report of Medical Examination and Medical History, conducted at enlistment, the examining physician endorsed "normal" psychiatric functioning of the Veteran, and no mental conditions were noted. In September 1983, the Veteran received a Mental Status Evaluation as he was being considered for discharge due to unsuitability. The Veteran was found to have normal behavior, clear thinking process, normal thought content, good memory, and unremarkable mood or affect. The Veteran was found to be fully alert and fully oriented. The Veteran was psychiatrically cleared for any administrative action. In a September 1983 Report of Medical History, conducted prior to discharge, periods of unconsciousness and periodic alcohol abuse were noted. The Veteran's post-service treatment records indicate that he spent several years hospitalized for mental health conditions. While the exact history of all his hospitalizations and institutionalizations for this period is somewhat unclear, the record does indicate that the Veteran was placed in a state hospital from May 1985 to June 1985. In April 1987, the Veteran was transferred from a state correctional institution to a state hospital for mental health conditions. In June 1990, the Veteran was transferred to a VA medical center. The Veteran was released to the care of his mother in March 1991. The record also indicates that the Veteran has lived in shelters or community residential care for many years. In March 2013, the Veteran obtained and submitted a disabilities benefits questionnaire for mental health disorders and letter from a psychiatrist. The psychiatrist diagnosed the Veteran with schizophrenia, residual type, and chronic alcohol dependence, in remission. The psychiatrist stated that the Veteran reported a diagnosis for schizophrenia around 1984 and has struggled with schizophrenia since that time. The psychiatrist noted the Veteran's arrest and long-term hospitalizations for mental health conditions. The psychiatrist noted that the Veteran learned of his twelve-year-old brother's unexpected death while serving in Germany during active service and described it as a very traumatic event for the Veteran. Unfortunately, the questionnaire and letter did not adequately address the nature, etiology, and onset of the Veteran's psychiatric condition. In this regard, the Board recognizes that the Veteran has not been afforded a VA examination for mental health disorders. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the record suggests that the Veteran's schizophrenia may have had its onset during active service. Considering the above, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's acquired psychiatric disorders. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. 2. Schedule the Veteran for a VA audiological examination to determine the nature, etiology, and severity of the Veteran's claimed hearing loss. Specifically, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that this disability had its onset in service or is otherwise related to active service. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric condition, including schizophrenia. Specifically, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed mental disorder had onset during service, manifested as a psychosis within a year of his separation from service, or is otherwise related to active service. A complete rationale for any opinions expressed should be provided. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completion of the aforementioned, the agency of original jurisdiction (AOJ) should readjudicate the Veteran's service connection claim. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.