Citation Nr: 19110012 Decision Date: 02/07/19 Archive Date: 02/07/19 DOCKET NO. 17-24 783 DATE: February 7, 2019 ORDER The appeal on the claim of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss is dismissed. The appeal on the claim of entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. The appeal on the claim of entitlement to an effective date prior to March 6, 2015, for the grant of service connection for tinnitus, is dismissed. New and material evidence having been received, the claim of entitlement to service connection for post-traumatic stress disorder (PTSD) (claimed as depression, anxiety, mood swings, problems being around people, and alcohol and drug problems) is reopened. New and material evidence having been received, the claim of entitlement to service connection for headaches is reopened. New and material evidence having been received, the claim of entitlement to service connection for a scar is reopened. REMANDED The claim of entitlement to service connection for a psychiatric disability, to include PTSD and anxiety disorder, not otherwise specified, is remanded. The claim of entitlement to service connection for residuals of a TBI is remanded. The claim of entitlement to service connection for headaches is remanded. The claim of entitlement to service connection for a scar is remanded. FINDINGS OF FACT 1. In a May 2015 written statement, the Veteran’s representative indicated that the Veteran wished to drop pursuit of the claims of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, entitlement to an initial rating in excess of 10 percent for tinnitus, and entitlement to an effective date prior to March 6, 2015, for the grant of service connection for tinnitus. 2. In July 2013, the Agency of Original Jurisdiction (AOJ) denied the Veteran service connection for PTSD (claimed as depression, anxiety, mood swings, problems being around people, and alcohol and drug problems), headaches and a scar. 3. The AOJ notified the Veteran of the decision, but the Veteran did not appeal it or submit evidence within a year of the notice. 4. The evidence received since July 2013 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disability, to include PTSD and an anxiety disorder, not otherwise specified. 5. The evidence received since July 2013 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for headaches. 6. The evidence received since July 2013 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for a scar. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal on the claim of entitlement to service connection for hearing loss have been met. U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for withdrawal of the substantive appeal on the claim of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for withdrawal of the substantive appeal on the claim of entitlement to an effective date prior to March 6, 2015, for the grant of service connection for tinnitus, have been met. U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 4. The July 2013 rating decision, in which the AOJ denied service connection for PTSD (claimed as depression, anxiety, mood swings, problems being around people, and alcohol and drug problems), headaches and a scar, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability, to include PTSD and an anxiety disorder, not otherwise specified. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has been received to reopen the claim of entitlement to service connection for a scar. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1993 to April 1997. Withdrawals Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss Entitlement to an initial rating in excess of 10 percent for tinnitus Entitlement to an effective date prior to March 6, 2015, for the grant of service connection for tinnitus The Board may dismiss any appeal that does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Either an appellant or the authorized representative may request withdrawal. 38 C.F.R. § 20.204. Here, in a May 2015 written statement, the Veteran’s representative indicated that the Veteran wished to drop pursuit of the claims of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, entitlement to an initial rating in excess of 10 percent for tinnitus, and entitlement to an effective date prior to March 6, 2015, for the grant of service connection for tinnitus. Consequently, as to those claims, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those claims and they must be dismissed. Service Connection Whether new and material evidence has been received to reopen the claim of entitlement to service connection for post-traumatic stress disorder (claimed as depression, anxiety, mood swings, problems being around people, and alcohol and drug problems) Whether new and material evidence has been received to reopen the claim of entitlement to service connection for headaches Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a scar The AOJ certified for appeal claims of entitlement to service connection for PTSD, an anxiety disorder, headaches and a scar after reopening these claims in a June 2016 statement of the case. However, the question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been received, the analysis must end there and consideration of the claim on a de novo basis is neither required nor permitted. Barnett, 83 F.3d at 1384. The Veteran seeks service connection for a psychiatric disability, however diagnosed, on a direct basis, as initially manifesting in service as mental health symptoms. He seeks service connection for headaches and a scar on a direct basis, as related to an in-service head injury sustained while in a fight. The AOJ previously denied these claims in a July 2013 rating decision based on the Veteran’s service treatment and personnel records, post-service treatment records, and written statements. According to that rating decision and a letter notifying the Veteran of that decision, the AOJ found the following: (1) It could not corroborate the Veteran’s alleged in-service stressors; (2) There is no evidence of a current psychiatric disability; (3) Although the Veteran sustained a head injury in service, there is no evidence that the Veteran currently has residual headaches or a scar; and (4) There is no evidence linking a psychiatric disability, headaches or a scar to the Veteran’s service. The AOJ notified the Veteran of the rating decision, which the Veteran did not appeal. In addition, within one year of the July 2013 notice, the AOJ received no evidence, new and material or otherwise, in support of the claims at issue here. 38 C.F.R. § 3.156(b). The July 2013 rating decision is thus final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran attempted to reopen this claim in March 2015. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all evidence of record. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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. 38 C.F.R. § 3.156(a). Evidence satisfies the reasonable possibility standard when, considered with the old evidence, it would at least trigger VA's duty to assist in securing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The pertinent evidence that has been associated with the claims file since the AOJ's July 2013 rating decision includes post-service treatment records, VA examination reports, and the Veteran’s written statements. This evidence is new, neither cumulative nor redundant of the evidence previously of record. This evidence is also material. By itself or when considered with the evidence previously of record, it triggers VA’s duty to assist in securing medical opinions, thereby raising a reasonable possibility of substantiating these claims. Shade v. Shinseki, 24 Vet. App. at 117 (2010). The VA examination reports and post-service treatment records show that the Veteran currently has the claimed conditions, evidence, the absence of which formed one of the bases of the AOJ’s previous denials. In addition, the reports of VA examinations include examiners’ opinions ruling out a relationship between the claimed conditions and Veteran’s service, but, for the reasons explained below, the opinions are inadequate, triggering VA’s duty to obtain addendum opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes effort to provide claimant an examination in development of claim, even if not obligated to do so, VA must ensure examination is adequate). As new and material evidence has been received, the Board may reopen these claims. Without further medical guidance, however, the Board may not decide the claims on their merits. REASONS FOR REMAND In April 2015, VA afforded the Veteran VA examinations in support of these claims, during which a VA examiner offered opinions as to the etiology of the claimed conditions. As the Veteran’s representative asserts in a May 2017 written statement, these opinions are inadequate, necessitating additional examinations. Entitlement to service connection for a psychiatric disability, to include PTSD and anxiety disorder, not otherwise specified Post-service medical evidence confirms the Veteran has a psychiatric disability that has been variously diagnosed. The Veteran asserts that his mental health symptoms initially manifested in service. He has identified certain in-service stressors as the potential cause of his psychiatric problems, which the VA examiner considered in conjunction with the PTSD claim only. The VA examiner did not address whether such stressors, including dealing with ammunitions in infantry and having Korean translators who voiced opposition to assisting the U.S., might have caused the Veteran’s other psychiatric disabilities to develop. In addition, the VA examiner attributed the Veteran’s anxiety to childhood, but did not address whether the Veteran’s current anxiety disorder preexisted service and was aggravated therein beyond its natural progression. Such an opinion is crucial given the Veteran’s in-service head injury and psychiatric diagnoses in early 1998, within a year of the Veteran’s discharge from service. The VA examiner also did not address whether any currently diagnosed psychiatric disability is related to the Veteran’s in-service head injury. Finally, in offering her opinion in this case, the VA examiner disregarded the Veteran’s reported medical history, which included a discussion of pertinent lay-observable symptoms. It is unclear whether she did so intentionally, or because she found the Veteran lacking in credibility. Entitlement to service connection for residuals of a TBI Entitlement to service connection for headaches Entitlement to service connection for a scar Service treatment records confirm an in-service head injury that required stitching. Post-service medical evidence indicates that the Veteran sustained another head injury post-discharge, in the early 2000s. VA examiners confirmed that the Veteran has headaches and a head scar, but ruled out a relationship between them and the Veteran’s service on the basis that the Veteran does not have a TBI related to service. This finding does not address whether the scar otherwise results from the in-service head injury. In addition, the cognitive findings the examiner noted in her report conflict with those shown in the treatment records, suggesting she did not review all critical evidence of record in offering her opinion. The Veteran’s representative requests that, in support of these claims, per VA policy, the Veteran undergo a VA examination by a specialist. He questions why, initially, an attending physician was assigned this duty. Finally, in offering her opinions on these claims, the VA examiner disregarded the Veteran’s reported medical history, which included a discussion of pertinent lay-observable symptoms. Again, it is unclear whether she did so intentionally, or because she found the Veteran lacking in credibility. The matters are REMANDED for the following action: Obtain an addendum opinion from a neuropsychiatrist or other TBI specialist on the etiology of the Veteran’s psychiatric disabilities, headaches, head scar and alleged TBI. The examiner should review the Veteran’s file, including: (1) service treatment and personnel records, which document a head injury; (2) post-service treatment records and VA examination reports, which confirm psychiatric disabilities since early 1998, headaches and a head scar, document a post-discharge head injury, and show cognitive symptoms; (3) the Veteran’s written statements, including those listing his alleged in-service stressors, and reported medical history, which identify pertinent, lay-observable mental health, head and cognitive symptoms; and (4) his representative’s May 2017 written statement, which outlines his arguments in this case. The examiner should record in detail the Veteran’s history of head injuries and mental health, head and cognitive symptoms, including prior to service, during service, and after discharge. The examiner should list all psychiatric disabilities shown to exist, or which were diagnosed during this appeal, including, if appropriate, PTSD and/or anxiety disorder. The examiner should indicate whether the Veteran has headaches and/or a scar on his head. Accepting as competent all reports of pertinent lay-observable symptoms, or, if appropriate, finding the Veteran lacking in credibility, and citing to all pertinent treatment records, including mental health records dated since 1998, the examiner should offer the following opinions: (1) whether any psychiatric disability initially manifested in service or is at least as likely as not otherwise related to service, including the documented head injury, the alleged dealings with ammunitions in infantry, and/or the exposure to Korean translators who voiced opposition to assisting the U.S.; (2) whether any psychiatric disability preexisted service and worsened therein beyond its natural progression, including secondary to the head injury; (3) whether the Veteran’s headaches initially manifested in service, as alleged, or are at least as likely as not otherwise related thereto, including the documented head injury; and (4) whether the scar on the Veteran’s head is at least as likely as not related to his in-service head injury. The examiner should provide a clear rationale for each opinion. Lesley Rein Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. N., Counsel