Citation Nr: 18143497 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-32 248 DATE: October 23, 2018 ORDER The appeal concerning whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss is dismissed. The appeal concerning entitlement to service connection for tinea pedis is dismissed. The appeal concerning entitlement to an increased rating for dermatofibroma is dismissed. New and material evidence has been received for the claim of entitlement to service connection for an acquired psychiatric disability, currently diagnosed as posttraumatic stress disorder (PTSD); the claim is reopened and service connection for PTSD, with dissociative symptoms and delayed expression, is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. In written correspondence received on September 6, 2018, the Veteran expressed his intent to withdraw the claims for entitlement to service connection for bilateral hearing loss and tinea pedis, and entitlement to an increased rating for dermatofibroma. 2. By a December 2002 rating decision, the RO denied the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD); he was advised of the RO’s decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO’s decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO’s December 2002 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability, currently diagnosed as PTSD, and raises a reasonable possibility of substantiating the claim. 4. The evidence of record favors a finding that the Veteran has PTSD that is proximately due to his active service. 5. The evidence of record favors a finding that the Veteran has OSA that is proximately due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal concerning whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204, 20.302 (2017). 2. The appeal for entitlement to service connection for tinea pedis is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204, 20.302 (2017). 3. The appeal for entitlement to an increased rating for dermatofibroma is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204, 20.302 (2017). 4. The December 2002 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 5. New and material evidence has been received to reopen the Veteran’s claim for service connection for PTSD. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156 (2017). 6. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.10 (2017). 7. The criteria for service connection for OSA, secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.10 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to July 1980. Although the Veteran requested a Board hearing in his September 2015 Form 9, he withdrew that request in correspondence received by the Board in September 2018. As such, a pending hearing request is not before the Board. Dismissal Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinea pedis. Entitlement to an increased rating for dermatofibroma. The claimant or the claimant’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a) (2017). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204 (b)(1) (2017). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204 (b)(3) (2017). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c) (2017). The Board may dismiss any appeal which fails to allege a specific error of fact or law. 38 U.S.C. § 7105 (d)(5) (West 2012); 38 C.F.R. §20.202 (2017). There is no obligation to proceed with further adjudication following withdrawal. Hanson v. Brown, 9 Vet. App. 29 (1996). In written correspondence received by VA on September 6, 2018, the Veteran, through his representative, stated that he wished to withdraw his pending appeals in regard to the issues of bilateral hearing loss, tinea pedis, and dermatofibroma. As this withdrawal meets the regulatory requirements, the claims of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, entitlement to service connection for tinea pedis, and entitlement to an increased rating for dermatofibroma, are hereby dismissed. See 38 C.F.R. § 20.204 (2017). New and Material Evidence The Veteran seeks entitlement to service connection for an acquired psychiatric disability, to include PTSD. He contends that new and material evidence, sufficient to reopen the previously disallowed claim of service connection, has been received. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108 (2012), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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 must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the RO, by a decision entered in December 2002, denied the Veteran’s claim for service connection for PTSD on the grounds that there was no confirmed diagnosis of PTSD and the available medical evidence was insufficient to confirm a link between current symptoms and an in-service stressor. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017). As a result, the RO’s decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the time of the RO’s December 2002 rating decision includes a positive medical opinion regarding the Veteran’s current PTSD being related to sexual assault and other circumstances of his active duty service. Specifically, an August 2018 private opinion from Dr. M.L.C. indicated that, after a thorough review of the medical records and extended discussion with the Veteran, his diagnosis is best captured by PTSD, with dissociative symptoms and delayed expression, which are focused and connected specifically to the events occurring on the USS America while he was in the military. The Board observes that, since the 2002 rating decision, two (2) pages of deck logs were also added to the record, raising the possibility of reconsideration under 38 C.F.R. § 3.156(c). However, as the Veteran did not provide details regarding the death of his fellow serviceman until after 2002 such that VA did not have sufficient information to obtain such records, application of 38 C.F.R. § 3.156(c) is not warranted. As the RO denied the Veteran’s claim in 2002 by noting no confirmed diagnosis of PTSD, and that there was insufficient evidence to confirm a link between current symptoms and an in-service stressor, the new medical evidence supports the contention that the Veteran currently has PTSD that may be directly related to his alleged in-service stressors. This evidence relates to an unestablished fact necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for an acquired psychiatric disability, currently diagnosed as posttraumatic stress disorder (PTSD) Establishing service connection for PTSD generally requires (1) evidence of a current medical diagnosis of PTSD, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) medical evidence of a link between the claimed in-service stressor and the current PTSD symptoms. 38 C.F.R. § 3.304(f). The Veteran contends that his currently diagnosed PTSD is related to his claimed in-service stressors which include an alleged in-service sexual assault as well as surrounding witnessing the death of a friend and fellow serviceman, and sexual assault he experienced in service. He has been diagnosed with PTSD, with dissociative symptoms and delayed expression. The first element of service connection for PTSD has been met. Military personnel records include ship deck log sheets that indicate a fellow serviceman was run over, and killed, by an F-14 that was stored on the ship’s flight deck. There is also indication in the Veteran’s military personnel records that he was disciplined on multiple occasions dating from December 1978. The Veteran indicated in an October 2002 statement in support of his claim that First Class Petty Officer B. was the person who sexually assaulted him and told him repeatedly that if he did not participate in sexual acts with him, he would be written up and disciplined. Since 2002, the medical evidence of record has demonstrated that the Veteran reported being sexually assaulted while on active duty. This is credible supporting evidence of the Veteran’s claimed in-service stressors, and the second element of service connection for PTSD has been met. A September 2011 private medical opinion by Dr. N.O. reflects that the Veteran reported symptoms of agitation and anxiety that started while he was on active duty. He indicated that he was the object of abuse and felt depressed and frustrated. The examiner indicated that this resulted in a restriction of daily activities and social functioning and that the Veteran had gained weight and developed sleep apnea. The Veteran was afforded VA examination in August 2012. He was diagnosed with alcohol abuse and bipolar disorder. The examiner indicated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. He demonstrated symptomatology of depressed mood, anxiety, chronic sleep impairment; and reported insomnia, nightmares, depressed mood, irritability, outburst of anger and anxiety. However, the examiner concluded that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness because there was no evidence of psychiatric complaints, findings or treatment prior to, or during military service. The examiner did not address the Veteran’s contentions regarding in-service sexual assault and the death of a fellow serviceman. In August 2018, the Veteran underwent a private psychiatric examination. The examiner provided an extensive history and detailed information about the Veteran’s condition and his current and prior symptoms. According to the private evaluation report, the Veteran began to develop severe depression and anxiety while on board the USS America. The private physician noted that he obtained psychiatric services in 1993 after attempting suicide; thereafter he received mental health treatment and was diagnosed with mood disorders, anxiety disorders, substance use disorders, psychotic disorders, and personality disorders. However, the physician indicated that, after a thorough review of the medical record and extended discussion with the Veteran, his diagnosis, based on the DSM-V, was most appropriately characterized as PTSD. The physician identified in-service events as resulting in the Veteran’s current PTSD: punishment and verbal and sexual harassment while serving on board the USS America ship; and witnessing the death of a friend. The physician opined that the Veteran met the diagnostic criteria for PTSD and, despite any childhood difficulties, those symptoms were specifically due to events occurring in military service. In addition, the physician detailed incidents of in-service assault reported by the Veteran and stated that, based on his experience and medical training, such assaults occurred and had resulted in current symptomatology. In claims with stressors based on personal assault, evidence from various sources may be used to corroborate the stressor, including evidence of behavioral changes following the claimed assault. 38 C.F.R. §3.304 (f)(5); see Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011) (stating that medical opinion evidence can be used to corroborate the claimed stressor in personal assault cases). In this case, the Veteran’s service records reflect no infractions from when he entered service until December 1978, which is around the time he reports that he began to experience abusive behavior. Several infractions were noted in 1979. The Veteran has been diagnosed with PTSD, which the private examiner attributed to his in-service experiences. Although the August 2012 VA examination provided a negative nexus opinion, it neglected to discuss the Veteran’s contentions and the full evidence of record. The Board finds the August 2018 opinion more probative. Affording the Veteran the benefit of the doubt, service connection for PTSD is hereby granted. 38 C.F.R. § 3.303. 2. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to an acquired psychiatric disability, to include PTSD As the Veteran has, above, been awarded service connection for PTSD, the Board must now consider his contention that his currently diagnosed OSA is secondary to his service-connected PTSD. The Veteran was afforded VA examination in August 2012. The examiner indicated that the Veteran was diagnosed with OSA in 2000. She opined that the claimed OSA was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She noted that there was no relationship in the medical literature of a link between OSA and a nervous condition. She indicated that the most frequent factors for the development of OSA are obesity, predisposing to collapse of pharyngeal airways, elongated uvula, and loss of normal pharyngeal muscle tone. In an August 2018 private examination, Dr. M.L.C. indicated that the Veteran was diagnosed with sleep apnea in 1997 and prescribed a CPAP machine. He noted that the literature will show that the Veteran’s OSA is causally associated with the development of PTSD. He noted that the American Academy of Sleep Medicine had advanced a position statement, dated May 19, 2015, titles “A new study of young US Veterans shows that the probability of having a high risk of OSA increased with increasing severity of PTSD symptoms.” He also observed an article of Colvonen et al. entitled “Obstructive Sleep Apnea and PTSD among OEF/IOF/ONF Veterans” supports this contention. He noted that the Veteran has only mild obesity and well-controlled hypertension, with no severe structural anomalies of the head and neck associated with OSA. Dr. M.L.C. stated that nervous system changes occurring from PTSD are causally linked to OSA. He opined that based on his review of the claims file and review of pertinent medical literature, it was at least as likely as not that the Veteran’s OSA was secondary to his PTSD. (Continued on the next page)   The Board finds that Dr. M.L.C.’s opinion constitutes competent, probative evidence on the medical nexus question. Not only does this opinion affirmatively rebut the VA examiner’s findings that there was no medical literature linking PTSD with OSA, but it provides a thorough analysis of the Veteran’s past and current symptoms. As Dr. M.L.C.’s opinion is the most probative of record, the Board will afford the Veteran the benefit of the doubt and herein grant service connection for OSA. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel