Citation Nr: 1639034 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 12-22 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for arthritis of the hands. 2. Entitlement to service connection for liver disease. 3. Entitlement to service connection for hypertension. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder NOS and major depressive disorder. 5. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Albuquerque, New Mexico and Fort Harrison, Montana. Jurisdiction resides in Albuquerque, New Mexico. The Veteran was afforded a Travel Board hearing before the undersigned in July 2016. A transcript of that hearing is of record. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder NOS and major depressive disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to the promulgation of a final decision by the Board, the Veteran indicated that he wished to withdraw his appeal for service connection for arthritis of the hands, liver disease, and hypertension. 2. The RO denied the Veteran's claim of entitlement to service connection for PTSD in January 2008, on the basis that there was no evidence of a verifiable stressor or a current diagnosis of PTSD; although the Veteran filed an NOD, he did not perfect an appeal for this issue. 3. The evidence received since the January 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 4. The evidence is at least in equipoise as to whether the Veteran's current tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal on the issues of entitlement to service connection for arthritis of the hands, liver disease, and hypertension, by the Veteran, have been met and the appeal is withdrawn. 38 U.S.C.A. § 7105 (b)(2), (d)(5)(West 2014); 38 C.F.R. § 20.204 (2015). 2. The January 2008 rating decision to deny service connection for PTSD is final. 38 U.S.C.A. §7105 (West 2014); 38 C.F.R. §§ 20.1103, 20.1104 (2015). 3. The criteria for reopening the claim of entitlement to service connection for PTSD are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). 4. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissed and Withdrawn Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at his hearing in July 2016, the Veteran withdrew his appeals for service connection for arthritis of the hands, liver disease and hypertension. Hearing testimony, when reduced to writing, can constitute a written communication. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The hearing transcript is part of the record on appeal. There are no remaining allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. Duties to Assist and Notify The Veteran has been provided all required notice, to include notice pertaining to the disability rating and effective date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to grant the benefits sought on appeal with regard to the Veteran's claims to reopen and for service connection for tinnitus. No further development is required. 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2015). Reopening Service Connection for PTSD Once a claim has been denied in an unappealed RO decision it is final so long as new and material evidence has not been added to the record in the appeal period. 38 U.S.C.A. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.156 (b), 20.302(a), 20.1103 (2015). Claims that are the subject of final decisions generally cannot be reopened. See 38 U.S.C.A. § 7105 (c). An exception to the rule that VA may not reopen a claim that has been the subject of a final disallowance is that if new and material evidence is presented or secured with respect to such claim VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented 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 evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. The credibility of the new evidence is to be presumed in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a January 2008 rating decision the RO denied the Veteran's claim for entitlement to service connection for PTSD. In pertinent part, the basis for denial of service connection was predicated on the record lacking evidence of a verified stressor or evidence of a current diagnosis of PTSD. Although the Veteran initiated an appeal by filing an NOD, he did not perfect this appeal after receiving a statement of the case. Therefore, the January 2008 rating decision is the last final prior denial of PTSD. At the time of the January 2008 decision, the record contained the Veteran's service treatment records, personnel records, VA and private treatment records and lay statements from the Veteran. Since this final decision, the Veteran has submitted examinations suggesting a diagnosis of PTSD due to service. See Dr. R. F., MD October 2010 and July 2106 records. In addition, the Veteran has testified with greater specificity as to the approximate date of his in-service PTSD stressors. The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. The Board finds that the aforementioned lay statements and clinical records constitute new and material evidence. These pieces of evidence provide detail as to a current diagnosis, related to an in-service stressor and his resulting symptomology. The newly submitted evidence presents some possibility of substantiating the claim. Therefore, there is sufficient new and material evidence to reopen the previously-denied claim. 38 C.F.R. § 3.156 (a), Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection for Tinnitus The Veteran contends that he experiences tinnitus as a result of noise exposure sustained during active service. He testified to being exposed to tank and artillery noise in Korea and experiencing tinnitus thereafter. See Board Hearing Transcript. He also testified that his symptomology has been continuous since its initial onset. Service treatment records are void of findings or complaints of tinnitus. However, the Veteran's form DD-214 indicates that his Military Occupational Specialty was general vehicle repairman. He also had badges for M-14 and M-16 rifle training. In light of the type and circumstances of the Veteran's service, noise exposure is conceded. 38 U.S.C.A. § 1154 (a). Evidence of in-service incurrence (noise exposure) is met. Post-service treatment records consist of VA and private examination reports showing a current diagnosis of tinnitus; therefore, the Veteran has a current diagnosis. See November 2011 South Western Ear, Nose and Throat and June 2012 VA examination reports. The Veteran has also presented competent evidence of first experiencing tinnitus contemporaneous to his service. See Charles v. Principi, 16 Vet. App. 370 (2004). He testified that he initially noticed his tinnitus after he left service, and that he essentially lived with it until it got to the point that he felt he needed to seek out care. The Board finds his testimony in this regard to be genuine and credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board is acutely aware that a VA examiner issued an opinion in June 2012 wherein it was determined that it was less likely than not that the Veteran's tinnitus was related to service. Rather, his tinnitus was opined to be likely related to the "post-military events" that caused his hearing loss. As support for this determination, the examiner noted the Veteran did not report hearing loss in service or tinnitus on his March 2007 VA examination. Notwithstanding these determinations, the Board finds this opinion insufficient for adjudication purposes. The examiner caveated these statements by indicating that an opinion as to the etiology of the Veteran's tinnitus could not be determined "with reasonable certainty." Moreover, the examiner failed to fully justify why the Veteran's noted, by unspecified, "post-military events" were more likely to have caused his tinnitus than his conceded in-service noise exposure. That said, the Board does acknowledge that the Veteran did previously deny having tinnitus on March 2007 VA hearing examination. Nevertheless, he has reasonably and credibly explained this initial denial. Specifically, at his personal hearing, the Veteran explained that he had indeed been suffering from tinnitus symptomology continually since service separation. However, since service he had essentially trained himself to ignore his tinnitus symptoms because a physician told him they were incurable. As such, he did not again report his symptomology until it became too severe to ignore. In reviewing the record, the Board finds that, save for the misunderstanding on March 2007 VA examination, the Veteran has consistently claimed that he first experienced ringing in the ears since discharge. There is no evidence of record to overtly contradict these statements. Furthermore, his wife of over 40 years credibly testified that he was indeed reporting ringing in his ears shortly after service separation. Therefore, the Board finds that the Veteran has a current diagnosis of tinnitus; that he has reported a continuity of symptomatology since service; that there is no convincing evidence to contradict the Veteran's reports of tinnitus symptoms since service; and that the disability under consideration in this appeal is of the type that lends itself to lay observation. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (d). As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for tinnitus is granted. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for service connection for arthritis of the hands is dismissed. The claim for service connection for liver disease is dismissed. The claim for service connection for hypertension is dismissed. New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder to include PTSD is reopened. Entitlement to service connection for tinnitus is granted. REMAND The Board finds that the Court of Appeals for Veterans Claim's holding in Clemmons v. Shinseki, 23 Vet. App. 1 (2009) is applicable in this case, as a review of the record reflects that the Veteran has various diagnosed psychiatric disorders, including PTSD, anxiety disorder NOS and major depressive disorder. See January 2011 VA examination and June 2016 R. F., MD treatment medical records. As such, the Board re-characterized the issue of service connection for PTSD to acquired psychiatric disorders, including PTSD, anxiety disorder and major depressive disorder. On Board hearing, the Veteran testified to suffering from a psychiatric disorder due to events he experienced in active service, including receiving regular terrifying enemy propaganda leaflets and being involved in a firefight wherein he killed a man. He also provided additional detail as to the date of his reported engagement with the enemy. He specified that the event occurred between September and December 1968. In that regard, a further attempt should be made to verify this in-service stressor. Correspondingly, the Veteran was most recently afforded a VA examination in January 2011. Following this examination, he was determined not to meet the diagnostic criteria necessary for a diagnosis of PTSD. In December 2013, the Veteran requested that he be afforded a new VA examination as additional pertinent medical evidence had been added to the claims folder since 2011. The Board finds that a new VA examination is warranted. Since his most recent VA examination the Veteran has received a separate diagnosis of major depressive disorder. See Dr. R. F., MD 2016 examination report. Further, his private physician has submitted a renewed diagnosis of PTSD which appears to be predicated on his reports of in-service stressors. Id. The Board notes that this diagnosis, alone, is insufficient to warrant service connection as there is no indication that it confirms to the required DSM criteria. Nonetheless, the findings of this physician do warrant adequate clinical consideration. Finally, on VA examination in January 2011 the examiner determined that the Veteran had enough psychological symptomology to warrant a diagnosis of anxiety disorder NOS. Significantly, the examiner did not provide an actual opinion as to whether this disability was related to his service. Instead, the examiner merely noted that the Veteran's reports correlated his psychological symptoms to service. LeShore v. Brown, 8 Vet. App. 406 (1995) (holding that a lay history is not transformed into competent evidence merely because it was transcribed by a medical professional.). Therefore an addendum opinion is required. In light of the foregoing, the Board finds that additional development is necessary in order to appropriately adjudicate the Veteran's contentions regarding the etiology of his acquired psychiatric disorders. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. Review the file and prepare a summary of the claimed second stressor, of the Veteran of killing an enemy solider in a firefight between September and December 1968. See Board Hearing Transcript Obtain additional information from the Veteran regarding the claimed stressor. Regardless as to whether or not he responds, this summary, and all associated service documents should be sent to the MCASC or any other appropriate agency for verification of the alleged stressful event in service. The agency should be provided with a copy of any information obtained above, and should be requested to provide any additional information that might corroborate the Veteran's alleged stressor. The RO/AMC should then indicate in the claims folder what stressors have been verified. All records and responses received must be associated with the claims file. See M21-1MR, Part IV, subpart ii, I.D.15. 2. Thereafter all outstanding treatment records, to include VAMC records, and any other records identified by the Veteran, should be obtained and added to the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of an acquired psychiatric disorder, to include PTSD, anxiety and major depressive disorder. Provide the examiner with information (such as a summary of corroborated stressors) and directions consistent with current applicable regulations. The claims file and a copy of this remand must be provided to the examiner and he or she must indicate review of these items in the examination report. The examiner should address the following: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the pendency of the appeal. The examiner should offer an opinion on whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. b. If PTSD is found, the stressor relied on should be noted in the record. c. If the diagnosis of PTSD is not made, the examiner must rationalize such a finding against the Veteran's treatment medical records which denote a diagnosis of PTSD. See Dr. F.'s 2016 examination report. d. For each assigned current diagnosis, to include PTSD and/or any other acquired psychiatric disorder present, the examiner should be asked to provide an opinion as to whether it is at least as likely as not (a 50 percent, or greater, likelihood) that the current acquired psychiatric disorder(s) was(were) incurred during the Veteran's service or as a result of an incident or stressor during the Veteran's service. i. Special attention is directed to the 2011 VA examiner's diagnosis of anxiety disorder NOS. ii. Special attention is directed to the Veteran's spouse's reports of a change noticed in the Veteran following his return from service, including verbal outbursts. See Board Hearing Testimony. A complete rationale for any opinion expressed must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Thereafter, the RO/AMC should readjudicate the Veteran's claim to include consideration of all evidence received as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and allowed an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs