Citation Nr: A24021237 Decision Date: 04/25/24 Archive Date: 04/25/24 DOCKET NO. 200304-73521 DATE: April 25, 2024 ORDER New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for concussions. New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for right ear hearing loss. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. Entitlement to service connection for concussions is granted. Entitlement to service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. Throughout the Veteran's continuous pursuit of his claims for service connection for an acquired psychiatric disorder, new and relevant evidence was received that tends to prove or disprove a matter at issue in the claims. 2. Throughout the Veteran's continuous pursuit of his claims for service connection for concussions, new and relevant evidence was received that tends to prove or disprove a matter at issue in the claims. 3. Throughout the Veteran's continuous pursuit of his claims for service connection for right ear hearing loss, new and relevant evidence was received that tends to prove or disprove a matter at issue in the claims. 4. The Veteran's acquired psychiatric disorder, to include PTSD, is related to his military service. 5. The Veteran's concussions are related to his military service. 6. The Veteran's right ear hearing loss is related to his military service. CONCLUSIONS OF LAW 1. The criteria for the readjudication of the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 101(35), 5108. 2. The criteria for the readjudication of the claim of entitlement to service connection for concussions have been met. 38 U.S.C. §§ 101(35), 5108. 3. The criteria for the readjudication of the claim of entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 101(35), 5108. 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for concussions have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service in the U.S. Navy from May 1975 to May 1979. In July 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the service connection issues for an acquired psychiatric disorder, concussions, and right ear hearing loss initially addressed in a May 2017 rating decision. In February 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 2024. Therefore, the Board may only consider the evidence of record at the time of the February 2020 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302. If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Because the Board is remanding the service connection for right ear hearing loss, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). New and Relevant Evidence In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim by submitting in writing or electronically a complete application on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending or has become finally adjudicated. If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the agency of original jurisdiction will issue a decision finding that there was insufficient evidence to readjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501(b). Upon receipt of a substantially complete supplemental claim, VA's duty to assist in the gathering of evidence under 38 C.F.R. § 3.159 is triggered and includes any such assistance that may help secure new and relevant evidence as defined in 38 C.F.R. § 3.2501(a) to complete the supplemental claim application. 38 C.F.R. § 3.2501(c). 1. New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for concussions. 3. New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for right ear hearing loss. The October 2020 rating decision did not make a favorable finding that new and relevant evidence had been submitted to readjudicate the Veteran's service connection claims for an acquired psychiatric disorder, concussions, and right ear hearing loss. As such, the Board must consider in the first instance whether new and relevant evidence has been received to readjudicate the claims of entitlement to service connection for an acquired psychiatric disorder, concussions, and right ear hearing loss. In the instant case, the Veteran initially filed a claim of entitlement to service connection for an acquired psychiatric disorder, concussions, and right ear hearing loss in December 2016. See December 2016 VA Form 21-526 EZ, Application for Disability Compensation and Related Compensation Benefits. In a May 2017 rating decision, the Veteran's service connection claim for right ear hearing loss primarily on the basis that the Veteran did not have a diagnosis of right ear hearing loss for VA compensation purposes. The Veteran's service connection claims for an acquired psychiatric disorder and concussions were denied primarily due to the lack of an in-service incurrence and nexus. As to his service connection claims for an acquired psychiatric disorder and concussions, in an April 2018 Rating Decision, the RO confirmed the May 2017 denial of these claims, noting, in part, a lack of a nexus. Since the April 2018 Rating Decision, new evidence regarding his acquired psychiatric disorder and concussions have been received, including a September 2019 private nexus statement. This evidence is new as it was not of record at the time of the prior final decision. The Board also finds that the evidence is relevant as it tends to prove or disprove a matter at issue, namely, a nexus between his service and his acquired psychiatric disorder and concussions. As to right ear hearing loss, in April 2018 Rating Decision, the RO confirmed the May 2017 denial of his right ear hearing loss, again noting lack of a diagnosis of right ear hearing loss. Since the April 2018 Rating Decision, new evidence regarding the Veteran's right ear hearing loss has been received, including the Veteran's lay statements of a worsening of his right ear hearing. This evidence is new as it was not of record at the time of the prior final decision. The Board also finds that the evidence is relevant as it tends to prove or disprove a matter at issue, namely, a diagnosis of right ear hearing loss. As such, the Board finds that new and relevant evidence has been submitted during the Veteran's continuous pursuit of his claim sufficient to readjudicate his service connection claims for an acquired psychiatric disorder, concussions, and right ear hearing loss. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. The Veteran contends that his acquired psychiatric disorder, to include PTSD, is related to his military service. The Board notes that the Veteran has diagnoses of PTSD, depression, and anger. See September 2019 private opinion. He also has a diagnosis of persistent depressive disorder with anxious distress. See April 2017 VA examination. As to his PTSD, service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the disorder in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor occurred, and (2) a link established by medical evidence between the current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). There are several avenues to document an in-service stressor, other than obtaining verification from government records repositories. In cases of in-service PTSD diagnosis, combat service, or prisoner of war status, a Veteran's stressor may be verified by lay evidence. 38 C.F.R. § 3.304 (f)(1), (2), (4). Lay evidence of personal assault requires appropriate corroboration, and a stressor related to Veteran's fear of hostile military or terrorist activity requires appropriate medical evidence. 38 C.F.R. § 3.304 (f)(3), (5). Service connection must be considered on the basis of the places, types, and circumstances of a veteran's service as shown by his or her service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As noted above, the Veteran has a diagnosis of PTSD. Second, regarding an in-service stressor, the Veteran contends that his PTSD is due to participating in boxing matches while he was in service. He also contends that his PTSD is due to having to take care of his mom during service. Indeed, this in-service stressors verified by his testimony as to having to take leave to care for his mom as well as his time as a boxer while in military service. See February 2024 Hearing Transcript, p. 4. His fellow service member assigned to the same division also reported that he boxed while he was in the Navy. See November 2019 VA 21-4138 Statement In Support of Claim. Given the competent and credible statements from the Veteran and fellow service member, the Board finds that an in-service stressor has been established. Therefore, the only remaining question is whether there is a nexus between the Veteran's in-service stressors and his PTSD. In June 2017, the private provider, R. L., PhD, concluded that his PTSD and TBI were more likely than not (50 percent or greater) directly connected to his military service. The provider also noted that the Veteran boxed for four years while in service and, as a result, had multiple concussions which may have contributed to part of his mental issues. In June 2017, the VA provider concluded that his history of boxing while in the military has more likely than not contributed to his mental condition and memory changes. The provider reasoned that he suffered multiple concussions while boxing, which can certainly create profound changes in his neurologic function. In September 2019, the Veteran's private primary care physician, Dr. J. B., concluded that his mental health condition, to include PTSD, started in his last year of service in the U.S. Navy and continued during the time he treated the Veteran. He concluded that his diagnoses of PTSD and TBI with CTE is more likely than not (50% or greater) directly connected to his military service. The provider also noted that suffering multiple concussions while in the military may have contributed to part of his mental issues. The Board finds the June 2017 private and VA opinions as well as the September 2019 private opinion probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a nexus has been established, service connection for PTSD is warranted. As service connection for PTSD is granted, the Board need not discuss his other diagnosed acquired psychiatric disorders. 5. Entitlement to service connection for concussions is granted. The Veteran contends that his history of concussions and acquired psychiatric disorder is related to his military service. At the outset, the Board notes that he has a diagnosis of traumatic brain injury (TBI) with symptoms of chronic traumatic encephalopathy (CTE). See September 2019 private opinion. Therefore, the Board finds that the first element for service connection, a diagnosis, has been met for his service connection claims for an acquired psychiatric disorder and concussions. As to an in-service incurrence, the Veteran contends that he suffered concussions due to his job as a boxer while in the military. Given the Veteran's testimony in his February 2024 hearing as well as his fellow service member's lay statements verifying his boxing activities while in service, the Board finds that the second element of service connection has been met. Therefore, the only remaining issue is whether a nexus may be established. As to a nexus, in March 2018, the VA examiner concluded that his claimed TBI was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran claimed memory impairment, anxiety, poor self-control issues and several nervous breakdowns since the time before his military discharge. He claimed this was related to cumulative head traumas sustained as a Navy boxer. The examiner reasoned that it was difficult to associate the head traumas to the claimed memory impairment and poor self-control issues after so many years from the presumed onset. The examiner noted that the issues of claimed memory impairment can just as well be a result of depression, anxiety, and adjustment disorder. The Board finds the March 2018 VA opinion inadequate. The examiner did not definitively conclude that the effect of his head trauma was not due to concussions he suffered in service. Rather, the examiner noted that it was difficult to determine the cause of his symptoms of head trauma, to include memory impairment, anxiety, poor self-control issues and several nervous breakdowns. The rationale and opinion are therefore too speculative to assign it any significant probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (observing that "may or may not" opinions are more common in opinions from treating providers and they cannot be given probative value). As noted above, in September 2019, the Veteran's private primary care physician, Dr. J. B., concluded that his TBI with CTE is more likely than not (50% or greater) directly connected to his military service. The provider also noted that suffering multiple concussions while in the military may have contributed to part of his mental issues. The Board finds the September 2019 private opinion probative, because it is based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a nexus has been established, service connection for concussions is warranted. 6. Entitlement to service connection for right ear hearing loss is granted. The Veteran seeks service connection for his right ear hearing loss. At the outset, the Board notes that, in the March 2018 VA examination for hearing loss, the examiner noted a diagnosis of right ear sensorineural hearing loss in the frequency range of 500-4000 Hz. While his right ear hearing loss was at a level not considered a VA disability for rating purposes in March 2018, since then, the evidence has shown a worsening of his right ear hearing loss. Specifically, his VA treatment records note ongoing issues with his ears, to include ear pain. See November 2018 primary care note. He has also testified that his hearing has worsened since his last VA hearing examination in March 2018, and his right ear hearing is comparable to his left ear, for which he is already service-connected. See February 2024 Hearing Transcript, p. 9. Given the supporting lay and medical evidence noting a shift in hearing in his right ear, the Board finds that the first element of service connection, a diagnosis, has been met. Second, as to an in-service incurrence, the Veteran reported acoustic noise trauma in service due to deck grinding and protected exposure to pistols during boot camp. See March 2018 VA examination, p. 5. Given the Veteran's competent and credible lay statements as to an in-service incurrence, the second element of service connection has been met. Therefore, the only remaining issue is whether a nexus may be established. In March 2018, the examiner concluded that the Veteran's right ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that the Veteran had a MOS that was rated as a low probability for noise exposure. The examiner also reasoned that a review of the medical records shows no evidence of hearing loss or permanent significant changes in hearing sensitivity during service. Therefore, the examiner concluded that it is less likely than not (less than 50 percent probability) that the hearing loss was caused by or is the result of an event in military service. The Board finds the March 2018 VA opinion inadequate, as the examiner did not consider the Veteran's statements of his reported acoustic noise trauma in service due to deck grinding and protected exposure to pistols during boot camp. The evidence in favor of the claim includes the Veteran's statements that he has been suffering from symptoms of right ear hearing loss starting in service and continuing to the present day. In weighing the Veteran's statements, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also has no reason to doubt the credibility of the Veteran's statements and as such finds them probative. Given the Veteran's credible statements of continuing symptoms and the lack of an adequate negative nexus opinion, the Board finds that service connection is warranted. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). Accordingly, service connection for right ear hearing loss is granted. Paul R. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, Counsel 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.