Citation Nr: 0002542 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 93-25 547 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from November 1976 to May 1985. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a March 1993 rating decision of the RO. In January 1996, the Board remanded the case for additional development of the record. At that time, the Board also deferred appellate consideration of the issue of whether new and material evidence had been submitted to reopen the claim of service connection for a hearing loss. The Board determines, based on its review of the record at this time, that it does have jurisdiction over this matter as reflected on the preceding page. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In October 1986, the RO denied the veteran's original claim of service connection for hearing loss; in the absence of a timely filed appeal, that decision became final. 3. New evidence, which bears directly and substantially on the veteran's claim of service connection for bilateral hearing loss and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim, has been presented. 4. The veteran is currently not shown to have impaired hearing which is considered to be a disability for VA compensation purposes. 5. In November 1991, the RO denied the veteran's claim of service connection for a nervous condition and provided the veteran with notification of that decision and her appellate rights; in the absence of a timely filed appeal, that decision became final. 6. New evidence, which bears directly and substantially on the veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD, and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim, has been presented. 7. The veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD, is plausible and capable of substantiation. CONCLUSIONS OF LAW 1. New and material evidence has been submitted for the purpose of reopening the veteran's claim of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 1131, 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of service connection for bilateral hearing loss must be denied by operation of law. 38 U.S.C.A. §§ 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (1999). 3. New and material evidence has been submitted for the purpose of reopening the veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 1131, 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 4. A well-grounded claim of service connection for an acquired psychiatric disorder, to include PTSD, has been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Determination of New and Material Evidence When a claim is disallowed by the RO, appellate review is initiated by the filing of a Notice of Disagreement within one year from the date of mailing of notice of the result of the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a Notice of Disagreement is filed within the one-year period, the RO shall issue a Statement of the Case. 38 U.S.C.A. § 7105(d). The veteran is provided a period of 60 days (or the remainder of the one-year period from the date of mailing of notice of the determination being appealed) to file the formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b). In the absence of a perfected appeal, the RO's decision becomes final, and the claim will not thereafter be reopened or allowed, except as otherwise provided. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The United States Court of Appeals for Veterans Claims (hereinafter referred to as the "Court"), in Elkins v. West, 12 Vet. App. 209 (1999) (en banc), has held that the Board must perform a three-step analysis when the veteran seeks to reopen a claim based on new evidence. First, the Board must determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), that, in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility that the outcome of the case on the merits would be changed). Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must determine whether, based upon all of the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69 (1995), the claim as reopened (and distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999) (en banc). A. Bilateral Hearing Loss In October 1986, the RO denied entitlement to service connection for a hearing condition as not being shown by the evidence of record. In the absence of a timely filed appeal, that decision became final. 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 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Evidence received since the October 1986 rating decision includes a report of an audiometric examination performed as part of a VA examination in September 1996. At that time, pure tone air conduction thresholds at 500, 1000, 2000, 3000 and 4000 Hertz were recorded as 25, 25, 20, 25, and 30 in the right ear, respectively; and, 20, 20, 15, 20, 35 in the left ear, respectively. The examiner further noted that pure tone hearing sensitivity was within normal limits for adjudication purposes. Upon review of the record, the Board finds that the additional evidence which has been submitted is new. In addition, the new evidence is relevant to the veteran's claim of service connection and is instrumental in ensuring a complete evidentiary record for evaluation of her claim. See Hodge, supra. In other words, the new evidence submitted is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. See 38 C.F.R. § 3.156(a). New and material evidence having been submitted, the claim of service connection for bilateral hearing loss is reopened. Where the Board determines that the claimant has produced new and material evidence, the claim is reopened and a determination must be made as to whether, based upon all of the evidence of record in support of the claim, presuming its credibility, see Robinette, supra, the claim as reopened (and distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, the Board may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Winters, supra. In this instance, the Board notes that a determination as to whether the veteran has submitted a well-grounded claim with regard to the issue of service connection for a bilateral hearing loss need not be addressed. The concept of a well- grounded claim applies to the character of the evidence presented by a claimant. For purposes of this decision, there is no dispute as to the evidence, but only to the law and its meaning; the concept of well grounded is not applicable. Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, and not the evidence is dispositive, a claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis, supra. Consequently, as the veteran is shown not to have a hearing disability for VA compensation purposes, the claim of service connection for a claimed hearing loss must be denied by operation of law. B. Acquired psychiatric disorder, to include PTSD In November 1991, the RO denied entitlement to service connection for a nervous condition and provided the veteran with notification of that decision and her appellate rights. In the absence of a timely filed appeal, that decision became final. The evidence of record at the time of the November 1991 rating decision included: the veteran's service medical records; a VA psychiatric examination conducted in March 1986, which determined that the veteran was not suffering from a psychiatric disorder; copies of VA outpatient treatment records; the testimony of the veteran offered at a hearing at the RO in November 1989; and, private medical reports documenting treatment for schizoaffective disorder. Evidence received since the November 1991 rating decision includes: copies of the veteran's service personnel records; VA outpatient treatment reports documenting treatment for PTSD based on incidences of sexual assault and harassment in service; a report of VA examination conducted in May 1996 diagnosing symptoms of post-traumatic stress exacerbated by the stressful experiences (of sexual harassment and assault) described as occurring in service; addenda to the May 1996 examination, prepared by the examining physician and dated in November 1996 and April 1999, definitely concluding that the veteran does, in fact, suffer from PTSD due to trauma experienced during her military service. Upon review of the record, the Board finds that the additional evidence which has been submitted is new. In addition, the new evidence is relevant to the veteran's claim of service connection and is instrumental in ensuring a complete evidentiary record for evaluation of her claim. See Hodge, supra. In other words, the new evidence submitted is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. See 38 C.F.R. § 3.156(a). New and material evidence having been submitted, the claim of service connection for an acquired psychiatric disorder, to include PTSD, is reopened. As noted above, where the Board determines that the claimant has produced new and material evidence, the claim is reopened and a determination must be made as to whether, based upon all of the evidence of record in support of the claim, presuming its credibility, see Robinette, supra, the claim as reopened (and distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, the Board may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Winters, supra. The Court has defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Based on a review of the evidence of record, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well- grounded claim, VA must assist her in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Court has held that the duty to assist the claimant in obtaining and developing facts and evidence to support her claim includes obtaining all relevant medical records. Littke v. Derwinski, 1 Vet. App. 90 (1990). It also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). In light of the above evidence, the veteran should be afforded a VA examination to be conducted by a physician who is not involved in her treatment in order to determine the nature and etiology of her acquired psychiatric disorder. All pertinent records also should be obtained for review. ORDER As new and material evidence to reopen the claim of service connection for a hearing loss has been submitted, the appeal to this extent is allowed. The claim of service connection for defective hearing is denied. As new and material evidence to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD, has been submitted, the appeal to this extent is allowed. As a well-grounded claim of service connection for an acquired psychiatric disorder, to include PTSD, has been submitted, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND As noted hereinabove, when a veteran submits a well-grounded claim, VA must assist her in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). In light of the above evidence, the veteran should be afforded a VA examination to determine the nature and likely etiology of her psychiatric disorder. In addition, all pertinent treatment records also should be obtained for review. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should contact the veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her since service for her acquired psychiatric disorder, to include PTSD. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. The RO should request from the veteran a statement containing as much detail as possible regarding the stressors to which she was exposed during her period of service. She should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, her service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran is informed that the Court has held that requiring a claimant to provide such information to the VA does not represent an impossible or onerous task. If the veteran wishes help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the veteran's response, the RO should undertake to verify any reported stressor or claimed stressful event in service, as noted by the veteran. 3. The RO should schedule the veteran for a VA psychiatric examination to be conducted by a physician who is not involved in her treatment in order to determine the nature and etiology of her claimed psychiatric disorder. All indicated tests must be conducted. The claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the requested study. The examiner should specifically include or exclude a diagnosis of PTSD. The examiner should comment in this regard on other medical reports which refer to a diagnosis of PTSD. If PTSD is diagnosed, the criteria upon which such diagnosis is made, including identification of the stressor(s), should be indicated, to include what evidence constituted an independently verified stressor. The examiner must make any diagnosis of PTSD based on the diagnostic criteria set forth in DSM-IV. A complete rationale for any opinion expressed must be provided. The report of the examination should be associated with the veteran's claims folder. 4. After the development requested hereinabove has been completed to the extent possible, the RO should again review the veteran's claim. If any benefit sought on appeal remains denied, the veteran and her representative should be furnished with a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals