Citation Nr: 1621085 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 15-34 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for vertigo, to include as secondary to tinnitus. 2. Entitlement to service connection for vertigo, to include as secondary to tinnitus. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress and dysthymic disorders, to include secondary to hearing loss, tinnitus, and otitis media. 5. Entitlement to a disability rating in excess of 10 percent for a bilateral hearing loss disability. 6. Entitlement to a compensable rating for otitis media. 7. Entitlement to total disability based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the VA Regional Office (RO) in St. Petersburg, Florida. The Veteran's claims of entitlement to service connection for posttraumatic stress and for dysthymic disorders, to include as secondary to bilateral hearing loss, tinnitus, and otitis media, have been merged and recharacterized in light of the decision in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In October 2014, the Veteran and his wife testified at an RO hearing. A transcript of the hearing has been associated with the claims file. VA has a heightened duty to assist the Veteran in developing his claim because his service treatment records are not available, and they may have been destroyed, at least in part, by fire at the National Personnel Records Center. This appeal was processed using the Virtual VA paperless claims processing system. Any future consideration of this case must account for the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for vertigo to include as secondary to tinnitus, an increased rating for bilateral hearing loss, and a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND section of this decision and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2010 rating decision declined to reopen a claim of entitlement to service connection for vertigo; the Veteran was properly notified of the decision and his appellate rights and did not perfect a timely appeal. 2. Evidence received since the May 2010 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for vertigo. 3. At the October 2014 RO hearing, the Veteran withdrew his claim of entitlement to service connection for a back disability. 4. At the October 2014 RO hearing, the Veteran withdrew his claim of entitlement to a compensable disability rating for otitis media. 5. The Veteran's posttraumatic stress disorder with dysthymia relates to his combat experience during the Korean War. CONCLUSIONS OF LAW 1. The May 2010 rating decision denying entitlement to service connection for vertigo is final. 38 U.S.C.A. § 7105 (West 2014). 2. New and material evidence has been received to reopen the claim of service connection for vertigo. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a back disability have been met. 38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 4. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a compensable disability rating for otitis media have been met. 38 U.S.C.A. §§ 7105; 38 C.F.R. §§ 20.202, 20.204. 5. Posttraumatic stress disorder and dysthymia were incurred inservice. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening VA may reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108. "New evidence" is evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must raise a reasonable possibility of substantiating the claim. Id.; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a May 2010 rating decision VA declined to reopen the claim of entitlement to service connection for vertigo. The Veteran was notified of the adverse outcome and of his appellate rights, and did not perfect a timely appeal to the Board. Hence, the May 2010 rating decision is final. 38 U.S.C.A. § 7105. VA declined to reopen the claim because the evidence of record did not show that the Veteran had a current diagnosis of vertigo, and because there was no evidence linking vertigo to service. New evidence has been received since the May 2010 rating that is material to the Veteran's claim of entitlement to service connection for vertigo. VA medical records from March 2009 establish that the Veteran has a current diagnosed of vertigo). The 2009 VA medical records constitute new evidence that raises a reasonable possibility of substantiating the Veteran's claim in that they establish that the Veteran has a current diagnosis of vertigo. See 38 C.F.R. § 3.310. Thus, new and material evidence has been submitted to reopen the claim of entitlement to service connection for vertigo. See 38 C.F.R. § 3.156(a). In addition, the RO performed a de facto reopening of the claim by providing the Veteran with an examination. See September 2011 VA Examination Report. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. Withdrawal may be made by the claimant or by his or her authorized representative. 38 C.F.R. § 20.204. At the RO hearing in October 2014, the Veteran requested to withdraw his claims of entitlement to service connection for a back disability and to a compensable disability rating for otitis media. The Veteran's request was made on the record and satisfies the requirements for the withdrawal of a substantive appeal. Because the Veteran has withdrawn these claims there are no allegations of specific error of fact or law for appellate review. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to service connection for a back disability and to a compensable disability rating for otitis media. The claims are dismissed. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for posttraumatic stress disorder, the evidence must show: (1) a current medical diagnosis of posttraumatic stress disorder; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between the current posttraumatic stress disorder symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2015); Moreau v. Brown, 9 Vet. App. 389 (1996). Absent clear and convincing evidence to the contrary, a veteran's lay testimony alone may establish the occurrence of a claimed in-service stressor when the evidence establishes that the veteran engaged in combat with the enemy and that the claimed stressor relates to that combat. See 38 C.F.R. § 3.304(f)(2) (2015). The Veteran's military personnel records establish that he was awarded the combat infantryman's badge. Hence, there is clear evidence that the Veteran served in combat during the Korean War, and his statements are sufficient to establish the occurrence of a claimed in-service stressor. Id. During an April 2011 private medical evaluation by a psychologist the Veteran reported that when he arrived in Korea he was mistakenly transported to the front lines, where he was "shot at and mortar shells were falling all around" and that he "was scared . . . because they didn't have guns or anything to defend themselves." The Veteran also reported that in his position as personnel clerk to the commanding officer, he visited the front lines to obtain casualty reports and witnessed "truck-loads" of dismembered, dead bodies. Following this evaluation a psychologist diagnosed the Veteran as having PTSD, depression, and anxiety disorder. She found that the Veteran's symptoms satisfy the DSM-IV criteria for a diagnosis of posttraumatic stress disorder and opined that the disorder related to his combat experiences during the Korean War. The April 2011 private opinion has significant probative value. The psychologist based her PTSD diagnosis on the results of several psychological tests and based her nexus opinion on the Veteran's statements regarding his combat experiences during the Korean War, to include receiving enemy fire. Her findings align with medical evidence that shows that the Veteran has been diagnosed as having PTSD and has received treatment for the disorder. See, e.g., VA records from September 2014 documenting treatment for PTSD, and from August 2015 diagnosing PTSD and depression. Her findings also align with the September 2011 VA examiner's findings that the Veteran's experiences during the Korean War were adequate to support a diagnosis of PTSD and that the Veteran's in-service stressor related to fear of hostile military activity. In contrast, the three VA mental health examination reports of record do not provide an adequate rationales in support of the opinions expressed. The April 2007 VA examiner diagnosed the Veteran as having depression related to chronic pain. The examiner did not address whether the Veteran's mental health problems related to his active duty, combat service and evidence submitted after the examination suggests that the Veteran has PTSD in addition to depression. A September 2011 VA examiner noted that the Veteran had been diagnosed as having PTSD and that his PTSD had been connected to service; however, the examiner diagnosed a dysthymic disorder-not PTSD- and found that the appellant's mental health symptoms did not relate to service. A November 2011 VA examiner also diagnosed a dysthymic disorder and found that the disorder did not relate to service-connected tinnitus, bilateral hearing loss, or otitis media. Significantly, the September and November 2011 VA examiners failed to reconcile their findings with medical evidence showing that the Veteran had been diagnosed as having PTSD and that the disorder had been found to be related to his combat service during the Korean War. Thus, the VA examiners' opinions lack significant probative value and are outweighed by the private medical opinion that is consistent with contemporary medical findings. To grant entitlement to service connection the evidence need only be in equipoise. In this case, however, the most probative evidence preponderates in favor of granting entitlement to service connection for posttraumatic stress disorder with dysthymia. The claim is granted. ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for vertigo. The claim of entitlement to service connection for a back disability is dismissed. The claim of entitlement to a compensable disability rating for otitis media is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and dysthymic disorder, is granted. REMAND The issues of entitlement to service connection for vertigo, to include as secondary to tinnitus, entitlement to an increased rating for a hearing loss disability, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders must be remanded for further development, to include providing the Veteran with new VA examinations. The September 2011 VA examiner did not provide an adequate rationale in support of his opinion that the Veteran's vertigo does not relate to service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (If VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The examiner found that the Veteran did not have a current diagnosis of vertigo and, subsequently, that his claimed condition did not relate to service. The examiner failed, however, to address the notation of vertigo in the Veteran's service treatment records and contemporary private and VA medical records. See undated service treatment records (noting "ear trouble since child" as well as a history of "vertigo + tinnitus"); October 1994 and November 1995 private medical records (suggesting that the Veteran experiences benign positional vertigo); March 2009 VA medical records (assessing vertigo). Specifically, the examiner failed to reconcile VA examination findings (i.e., no diagnosis) with medical evidence that suggests that the appellant has a current diagnosis of vertigo or to explain why the claimant's current disability does not relate to in-service treatment for vertigo. A new VA examination is necessary to determine the exact nature of the Veteran's claimed disability-dysequilibrium or vertigo-and to obtain an opinion, supported by a thorough explanation, as to whether the Veteran's disability relates to service. In February 2012, the Veteran reported that his hearing loss had worsened since it was last evaluated by the RO in November 2011. The Veteran has also asserted that his last VA audiological examination in September 2011 was inadequate and has requested a more up-to-date audiological examination. The Veteran's statements regarding his worsening symptoms combined with the length of time since his last VA audiological examination-well over four years-warrant a new VA examination to determine the present severity of his service-connected bilateral hearing loss disability. See 38 C.F.R. § 3.327(a) (2015) The issue of entitlement to total disability evaluation based on individual unemployability due to service connected disorders is remanded because it is inextricably intertwined with the above discussed claims. In addition, the RO must initially rate the Veteran's now service-connected posttraumatic stress disorder with dysthymia before addressing the question of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. See Harris v. Derwinski, 1 Vet.App. 180 (1991). The case is REMANDED for the following actions: Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Request that the Veteran identify any pertinent private medical and/or non-medical evidence that is not included in the claims file. Thereafter, the RO must conduct all appropriate development that is consistent with VA's duty to assist. 2. Obtain any outstanding VA treatment records and associate them with the claims file. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter schedule the Veteran for a VA audiological examination. The entire claims file, to include all VBMS and Virtual VA records, as well as a copy of this REMAND, must be made available to the VA examiner, who must note its review. a. The VA audiologist must address the exact nature and etiology of the Veteran's dizziness. That is, does the Veteran suffer from vertigo or does he suffer from dysequilibrium. Following the examination, the audiologist must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed vertigo/dysequilibrium had its clinical onset during service or is related to any incident of service. If not, is it at least as likely as not that the Veteran's vertigo/dysequilibrium was caused or permanently aggravated by tinnitus and/or bilateral hearing loss. The examiner has an independent responsibility to review the entire record for pertinent evidence, to include any pertinent medical evidence added to the record as a result of this remand. The audiologist's attention is invited to the following: Undated Service Treatment Records (noting "ear trouble since child" and a history of "vertigo + tinnitus"); May 2008 Board Hearing Transcript (testifying that the Veteran did not experience dizziness in service and that his dizziness first manifested in the 1970s); March 2009 VA treatment records (assessing vertigo); March 2010 VA treatment records (reporting that the Veteran first experienced dizziness in 1989); October 2014 RO Hearing Transcript (testifying that the Veteran first experienced dizziness in 1988 and that the dizziness relates to his tinnitus). The audiologist must provide a complete rationale for his/her opinion, to include addressing the Veteran's in-service notation of vertigo. If the opinion rendered is negative, the audiologist must explain why the Veteran's in-service vertigo does not relate to his current vertigo/dysequilibrium. If the examiner is not able to provide an opinion without resorting to speculation, he/she must state the reasons why such an opinion cannot be rendered. The examiner should address whether a definitive opinion cannot be provided because required information is missing (in which case the examiner should specify what information is missing) or because current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The examiner should be as specific as possible. b. The VA audiologist must assess the severity of the Veteran's service-connected bilateral hearing loss disability. The examiner should use the appropriate disability benefits questionnaire to assess the severity of the Veteran's bilateral hearing loss and the resulting functional impairment. 4. After directives one through three have been completed, provide the Veteran with a VA vocational examination to determine the limitations imposed by his service-connected disabilities, to include posttraumatic stress disorder with dysthymia. The vocational expert must offer an opinion as to whether it is at least as likely as not that the Veteran's service-connected disorders alone preclude all forms of substantially gainful employment that are consistent with his education and occupational experience. All findings and conclusions must be supported by a full and complete written rationale. 5. Review the medical examination reports to ensure that they adequately respond to the above instructions. If a report is deficient in this regard, return the case to the relevant VA examiner for further review and discussion. 6. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs