Citation Nr: 1802773 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 15-30 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for arthritis, to include as secondary to chemotherapy for service-connected lymphoma. 2. Entitlement to service connection for lumbar strain with degenerative disc disease (back disorder). 3. Entitlement to service connection for a bilateral foot disorder, to include as secondary to chemotherapy for service-connected lymphoma. 4. Entitlement to service connection for stenosis of the larynx (throat disorder). 5. Entitlement to service connection for asthma, claimed as bilateral lung disorder, to include as secondary to chemotherapy for service-connected lymphoma. 6. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes and/or lymphoma. 7. Entitlement to service connection for a liver disorder, to include as secondary to chemotherapy for service-connected lymphoma. 8. Entitlement to service connection for hepatitis C with hepatosplenomegaly. 9. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lymphoma and service-connected diabetes mellitus. 10. Entitlement to service connection for bilateral hearing loss. 11. Entitlement to service connection for tinnitus. 12. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as secondary to chemotherapy for service-connected lymphoma. 13. Entitlement to service connection for gastroesophageal reflux disease (GERD) to include as secondary to chemotherapy for service-connected lymphoma. 14. Whether new and material evidence has been received to reopen a claim for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, to include as secondary to service-connected lymphoma. 15. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, to include as secondary to service-connected lymphoma. ORDER Claim for entitlement to service connection for arthritis is dismissed. Claim for entitlement to service connection for a back disorder is dismissed. Claim for entitlement to service connection for a bilateral foot disorder is dismissed. Claim for entitlement to service connection for a throat disorder is dismissed. Claim for entitlement to service connection for asthma is dismissed. Claim for entitlement to service connection for hypertension is dismissed. Claim for entitlement to service connection for a liver disorder is dismissed. Claim for entitlement to service connection for hepatitis C is dismissed. Claim for entitlement to service connection for CFS is dismissed. Claim for entitlement to service connection for GERD is dismissed. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened, and the appeal is granted to this extent only. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran has withdrawn his appeal seeking entitlement to service connection for arthritis, a back disorder, a bilateral foot disorder, a throat disorder, asthma, hypertension, a liver disorder, hepatitis C, CFS and GERD. 2. In an unappealed rating decision dated in March 1986, service connection for an acquired psychiatric disorder was denied on the basis that it was not related to the Veteran's active service. Evidence received since the March 1986 rating decision includes medical evidence and service personnel records; this evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Bilateral hearing loss is not etiologically related to active service and may not be presumed to have been incurred in service. 4. Tinnitus is not etiologically related to active service and may not be presumed to have been incurred in service. 5. Erectile dysfunction is not etiologically related to active service and may not be presumed to have been incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for arthritis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for a back disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for a bilateral foot disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 4. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for a throat disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for asthma have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 6. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 7. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for a liver disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 8. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for hepatitis C have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 9. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for CFS have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 10. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to service connection for GERD have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 12. New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 13. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 14. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 16. Erectile dysfunction was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In his July 2015 Form VA-9, Formal Appeal to the Board, the Veteran requested a videoconference hearing before the Board at the local RO. In correspondence dated September 22, 2017, the Veteran withdrew his hearing request. As such, the Board considers this request withdrawn. In a July 2017 rating decision, the RO granted entitlement to service connection for peripheral neuropathy of the upper and lower extremities, as secondary to chemotherapy. Since that represents the full grant of the benefits sought, those claims are no longer before the Board. AB v. Brown, 6 Vet.App. 35 (1993). The Board has recharacterized the claims on appeal accordingly, as reflected above. Case law provides that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects mental disorders other than PTSD, including depression, schizophrenia, and anxiety. Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the psychiatric claim on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for an acquired psychiatric disorder is REMANDED to the Agency of Original Jurisdiction (AOJ). I. WITHDRAWAL The issues of entitlement to service connection for a back disorder, hypertension, arthritis, a throat disorder, a bilateral foot disorder, asthma, hypertension, a back disorder, a liver disorder, and hepatitis C were first denied in a July 2011 rating decision. The Veteran perfected his appeal with regard to the issues in July 2015. The issues of entitlement to service connection for CFS and GERD were first denied in a December 2016 rating decision. The Veteran perfected his appeal with regard to those issues in August 2017. In several written communications, however, the Veteran stated that he wished to withdraw the issues on appeal. In a November 20, 2015 communication, the Veteran stated that he wished to withdraw the claims for arthritis, a bilateral foot disorder, a throat disorder, liver disorders, a back disorder, hypertension, asthma, and hepatitis C. In a June 7, 2017 communication, the Veteran stated that he wished to withdraw his January 19, 2017 notice of disagreement (NOD). In a June 10, 2017 communication, the Veteran stated that he wished to withdraw only the issues of neuropathy, diabetes mellitus, cancer, and chronic fatigue, and to continue all other issues on the January 19, 2017 NOD. In a June 27, 2017 communication, he reiterated that he wished to withdraw the issues of TDIU, throat disorder, and liver disorders. Here, the Board notes that because the second statement (dated June 10, 2017) was received so close in time to the first statement regarding issue withdrawal (dated June 7, 2017), the Board can infer that he did not intend to withdraw all the issues in the January 19, 2017 NOD. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3) (2017). 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. § 7105 (2012). 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 (2017). The Veteran has withdrawn the appeal on the issues of a back disorder, hypertension, arthritis, a throat disorder, a bilateral foot disorder, asthma, hypertension, a back disorder, a liver disorder, and hepatitis C, CFS and GERD. The Board finds that the Veteran's withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, as there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to the issues, and they are dismissed. II. NEW AND MATERIAL EVIDENCE Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran filed a request to reopen his claim for entitlement to service connection for an acquired psychiatric disorder in February 1988. His claim was previously denied in March 1986. At the time of his March 1986 denial, evidence of record included private medical treatment records, VA medical records, service treatment records, and service personnel records. Since the last final denial, evidence added includes additional included private medical treatment records, VA medical records, service treatment records, and service personnel records. Based on a review of this new evidence, cited below, and the low standard for reopening claims, the Board finds that the new and material evidence criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for PTSD is reopened. III. ERECTILE DYSFUNCTION The Veteran asserts that his erectile dysfunction (ED) is related to his active service, to include as a result of his service-connected lymphoma and service-connected diabetes. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran's current diagnosis of ED either began during active service, or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence does not establish that ED is etiologically related to the Veteran's active service, or any service-connected disability. The Veteran's STRs do not show any complaints related to erectile dysfunction, or any treatment for it. The Veteran's post-service medical treatment records show that he experienced erectile dysfunction. See VA treatment records, August 2007. None of the VA or private treatment records provide any opinions as to the etiology of the Veteran's ED, or any statements which would tie the Veteran's ED to his service-connected diabetes or lymphoma. The VA diabetic examinations of November 2016 and May 2017 noted that the Veteran did not have erectile dysfunction as a result of diabetes mellitus. As such, the nexus element has not been met. There is no evidence to show that the Veteran's ED is related to his active service. There is no evidence that the Veteran's ED is related to his service-connected diabetes mellitus or lymphoma, and there is no evidence that his ED is directly related to his active service. The Board recognizes that the Veteran asserts that his claimed ED is related to his active service, and to any of his service-connected disabilities. However, while the Veteran is competent to report symptoms, in this case, he is not competent to provide a medical nexus for his ED. Determining its cause requires medical training and expertise. This is training and knowledge that the Veteran has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board emphasizes that there is persuasive VA medical evidence that weighs against the Veteran's claims. The Board finds the noted VA examinations which failed to connect the Veteran's ED to any of his service-connected disabilities to be the only competent and probative evidence of record, and therefore, finds that service connection for ED is not warranted. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). IV. BILATERAL HEARING LOSS AND TINNITUS The Veteran asserts that his bilateral hearing loss and tinnitus are related to his active service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran has a current diagnosis of bilateral hearing loss and tinnitus, and, if so, if the disorders either began during active service, or are etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence does not establish that bilateral hearing loss and tinnitus are etiologically related to the Veteran's active service. A review of the service medical records (STRs) show that they are silent for complaints of or treatment for hearing loss, tinnitus, or any ear-related issues during active service. The Veteran's service entrance and separation examinations showed normal hearing bilaterally, with no significant threshold shifts. The Veteran's private and VA treatment records after his separation from service show no hearing loss and tinnitus complaints. The Veteran's hearing was noted as "normal" on multiple occasions. See private treatment records, December 2002-January 2007, in Caseflow Reader. His ears were also noted as "normal" on multiple occasions. See private treatment records, November 2011-June 2016, in Caseflow Reader. The Veteran's physician has also noted "no problems with hearing." See private treatment records, January 2017, in Caseflow Reader. The Veteran underwent a VA audiological examination in November 2016. The examiner stated that he was unable to test the Veteran's hearing. The examiner stated that even though the Veteran malingered on the audiometric evaluation assessment, an opinion could be provided due to the clinically acceptable evidence. The examiner opined that the Veteran had normal hearing. The examiner also stated that any hearing loss and tinnitus the Veteran experienced were less likely as not related to his active service, and more likely impacted by noise exposure, presbycusis (age-related hearing loss), and/or some other etiology. The Board acknowledges that the Veteran is competent to report that he experiences bilateral hearing loss and tinnitus. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Board notes that the Veteran is competent to report that he experience symptoms of a bilateral hearing loss and tinnitus because that is information that comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, although the Veteran contends that he has bilateral hearing loss and tinnitus that are related to active service, the Veteran's opinion is insufficient to provide the requisite etiology of the claimed bilateral hearing loss and tinnitus because those matters require medical expertise. The Board finds that the evidence does not support a continuity of symptomatology of a bilateral hearing loss and tinnitus because the evidence does not show complaints of or treatment for hearing loss and tinnitus symptoms from separation from service until about July 2016, when the Veteran filed his compensation claim with VA, about 46 years after separation from active service. 38 C.F.R. § 3.159 (a)(1) (2017); Duenas v. Principe, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's statements regarding hearing loss and tinnitus being related to service are not competent evidence as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to etiology or an opinion as to the existence of a disorder. His statements as to a continuity of symptomatology are less persuasive because hearing loss and tinnitus were not shown in service, or after service until about 2016 and his claims of symptoms are not supported by evidence of treatment. In addition, no evidence exists in the Veteran's STRs to show that he had any hearing-related issues in active service. In sum, no medical evidence supports the Veteran's contentions that his bilateral hearing loss and tinnitus are in any way related to his active service. The evidence of record is against a finding that any bilateral hearing loss and tinnitus the Veteran experienced are related to service or to any in-service issues. The Board finds it significant that neither the Veteran nor his representative have presented or identified any medical opinion that supports the claim for service connection for bilateral hearing loss and tinnitus. And no other opinion of record establishes that the Veteran's bilateral hearing loss and tinnitus are etiologically related to, or the result of, an injury experienced during active service. No relationship between bilateral hearing loss and tinnitus and active service has been established by either competent evidence or continuity of symptomatology. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and tinnitus and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMAND The Veteran's claims entitlement to service connection for an acquired psychiatric disorder, stating that his psychiatric disorder is related to his active service, or to his service-connected lymphoma. The Veteran underwent a VA psychiatric examination in August 2016. The Veteran was tested to assess the validity of self-reported psychiatric symptoms and the likelihood of over-reporting, exaggeration, and/or feigning of psychiatric symptoms. The examiner noted that the total score was extremely and significantly elevated above the recommended cutoff score for the identification of likely over-reporting, exaggeration, and/or feigning psychiatric symptoms, and that the Veteran endorsed a very high frequency of symptoms that were highly atypical in individuals with genuine psychiatric or cognitive disorders. The examiner opined that the Veteran did not experience any psychiatric disorders. The examiner also stated that the Veteran has never been diagnosed with any mental disorders. This is factually incorrect, as the Veteran's extensive medical records (private treatment records, VA treatment records, and Social Security Administration records) show diagnoses of PTSD, depression, schizophrenia, and anxiety. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Notably, the August 2016 VA examination is inadequate to the extent that the examiner stated that the Veteran was never diagnosed with any psychiatric disorders. Therefore, the Veteran's medical records and claims file should be provided to a VA examiner for an addendum opinion to reconcile the fact that the Veteran was diagnosed with several psychiatric disorders with the fact that the Veteran did not meet the diagnostic criteria for a psychiatric disorder, and whether any of those disorders are related to his active service, or to any service-connected disorders. McLendon v. Nicholson, 20 Vet. App. 79 (2006) Accordingly, the case is REMANDED for the following action: (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. Return the claims file to the August 2016 VA examiner, if available. If not available, another VA examiner should review the Veteran's file and all the medical records within it. The examiner must review the claims file and should note that review in the report. The examiner should specifically note the diagnoses of PTSD, depression, anxiety, and schizophrenia in the medical treatment records. A complete rationale for all opinions offered must be provided. The examiner should specifically provide a clarifying addendum opinion as to: a) Reconcile the fact that the Veteran has diagnoses of several psychiatric disorders, per his claims file, with the fact that the August 2016 VA examiner's opinion that the Veteran did not experience any psychiatric disorders. b) State whether the Veteran's psychiatric disorders, if any, are at least as likely as not (50 percent or greater probability) related to his active service. c) State whether the Veteran's psychiatric disorders, if any, are at least as likely as not (50 percent or greater probability) aggravated (chronically worsened) by his service-connected lymphoma/cancer. 2. Then, readjudicate the issue on appeal. If the benefits sought are not granted, furnish the Veteran and his representative a SSOC, and afford them an opportunity to respond. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs