Citation Nr: 22040149 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-30 195 DATE: July 13, 2022 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. New and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, including depressive disorder is remanded. FINDINGS OF FACT 1. An unappealed February 2015 rating decision denied service connection for a psychiatric disorder (claimed as pos-traumatic stress disorder) and the reopening of a previously denied claim for service connection for bilateral hearing loss. 2. Evidence received since the February 2015 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself ot with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder and bilateral hearing loss. CONCLUSIONS OF LAW 1. As new material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for an acquired psychiatric disability is met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for bilateral hearing loss is met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from April 1975 to April 1978. The matters come to the Board from an April 2018 rating decision denying reopening the claim for entitlement to service connection for a psychiatric disability and a January 2019 rating decision denying reopening the claim for entitlement to service connection for bilateral hearing loss. The Veteran appeared before the undersigned at a Board hearing in October 2021. The transcript is in the record. In September 2021, the Veteran's representative requested the curriculum vitae (CV) of the audiological examiner who had last examined the Veteran. This request was withdrawn at the October 2021 personal hearing. NEW AND MATERIAL EVIDENCE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder and service connection for bilateral hearing loss If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. See 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. See 38 C.F.R. § 3.156 (a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. The issue of entitlement to service connection for bilateral hearing loss was initially denied in a July 2009 rating decision and a notice of the decision was provided to the Veteran the same month. The issue was readjudicated and denied in a November 2010 rating decision and the Veteran was provided notice of the decision the same month. No new and material evidence received within a year of the decision. The record does include a June 2014 statement from the Veteran expressing disagreement with the "rating" assigned for his hearing loss. A July 2014 letter from the AOJ advised the Veteran that his June 2014 letter, which was interpreted as a notice of disagreement, was not timely. Hence, the November 2010 rating decision became final. A February 2015 rating decision denied the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) and reopening the previously denied claim for service connection for hearing loss. With respect to the claim for service connection for PTSD, the AOJ determined that there was insufficient evidence of an in-service stressor. The AOJ also determined that the Veteran had yet to provide evidence that he had a hearing loss disability related to his active service. Notice of the decision was provided to the Veteran the same month. No new and material evidence received within a year of the decision. There is also no indication that the Veteran sought to appeal this rating decision. The February 2015 rating decision became final. Evidence received since the February 2015 rating decision includes information that narrows down the timeframe of the alleged tank incident and an opinion relating the Veteran's current psychiatric disabilities to his military service. Similarly, with respect to the Veteran's claim for service connection for hearing loss, the Veteran testified that VA had issued him hearing aids subsequent to his last VA examination, which he argued was representative of an increase in his hearing loss disability and representative of a hearing loss disability. The evidence is neither cumulative or redundant and raises the reasonable possibility of substantiating the claim. Thus, the claim for entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The previous denial for service connection for bilateral hearing loss was based on the Veteran's hearing not meeting the requirements for hearing loss for VA purposes. However, at the Board hearing, the Veteran testified that since the January 2019 examination, which noted hearing loss and provided a positive nexus opinion, his hearing has worsened. He indicated that he was issued hearing aids subsequent to the examination. Such suggests the Veteran may now have hearing loss for VA purposes. For that reason, a remand for another examination to determine the severity of the Veteran's bilateral hearing loss is required to determine whether the Veteran now has hearing loss of VA purposes. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has consistently reported that his psychiatric symptoms began in-service after a tank accident during which a fellow service-member lost his life. The Veteran has testified that a tank driver downshifted causing the tank to lurch and throwing another service-member into the tank's path where he was killed. The Veteran's reports of this incident have been constant and consistent since he began seeking treatment at the VA. A November 2021 psychological evaluation was performed by Dr. Q.A.S., who diagnosed the Veteran with persistent depressive disorder, other specified stressor disorder, and alcohol use disorder in remission. Dr. Q.A.S. also opined that these conditions are related to his military service. While the opinion of Dr. Q.A.S. connects the Veteran's psychiatric diagnoses to his described in-service stressor event, this event is not related to combat or fear of hostile military activity and thus additional corroborating evidence is required. In September 2017, the Veteran was notified that he had supplied insufficient information to verify his claimed stressor. The Veteran has provided two approximate timeframes for the tank incident, the summer of 1976 and the summer of 1977. At the hearing the Veteran testified that the incident took place during a training exercise involving the tank units of the tank battalion. The Veteran's personnel records indicate he was in the Btry A 4th Bn 4th FA at Fort Sill, OK. Efforts should be made to obtain battalion history during the time the Veteran was stationed at Fort Sill and to request any information relating to the alleged tank incident from the narrowed timeframes, summer of 1976 and summer of 1977, provided by the Veteran. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressor, including the alleged tank accident and death of a fellow servicemember. Such should include a request for a battalion history for the 4th BN and for any information pertaining to a tank accident occurring at Fort Sill, OK, in either the summer of 1976 or 1977 and that resulted in a fatality. 2. Schedule the Veteran for a VA examination for his bilateral hearing loss to determine whether the Veteran's hearing loss meets the criteria for hearing loss for VA purposes. The examiner must review the claims file. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.