Citation Nr: 21065215 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-01 852 DATE: October 25, 2021 ORDER The appeal as to entitlement to service connection for sleep apnea is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, insomnia, and PTSD, is remanded. Entitlement to serve connection for a left leg disorder, to include peripheral artery disease of the left leg, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT In June 2021, prior to the promulgation of a decision in the appeal, the Veteran stated on the record at a Board hearing that he wished to withdraw his appeal as to the issue of entitlement to service connection for a sleep apnea disorder. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to entitlement to service connection for sleep apnea are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to January 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February 2016 and January 2017. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing is of record. 1. Entitlement to serve connection for sleep apnea. In August 2016, the Veteran filed a service-connection claim for sleep apnea, which was denied by a rating decision of January 2017. The Veteran filed a NOD in July 2017 and VA Form 9 in January 2018. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any issue involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or an authorized representative. A withdrawal is effective upon receipt, and the withdrawal of an appeal on the record at a hearing need not be in writing. 38 C.F.R. § 20.204. At the Board of June 2021, the Veteran stated that he wished to withdraw the issue of entitlement to service connection for a sleep apnea disorder. Because the Veteran has withdrawn the appeal, it will be dismissed. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. In October 2015, the Veteran filed service-connection claims for hearing loss of the left ear and for tinnitus. A rating decision of February 2016 denied service connection for hearing loss and for tinnitus. The Veteran filed a NOD in August 2016 and VA Form 9 in January 2018. In December 2015, the Veteran underwent a VA examination for hearing loss and tinnitus. He reported that, as part of his military police duties during service, he fired weapons with this right hand without hearing protection. It was noted that the Veteran's military occupational specialty (MOS) was military police and that the December 1972 report of medical examination for separation found normal hearing bilaterally. The VA examination found the Veteran to have bilateral sensorineural hearing loss in the frequency range of 500-4000 Hertz, and the degree of hearing loss met the definition of a hearing loss disability as defined by 38 C.F.R. § 3.385. A negative nexus opinion was offered with respect to hearing loss, with the stated rationale that the Veteran did not notice any hearing loss until approximately one year ago, which was over 40 years after his discharge from service. The examiner also determined that the Veteran's tinnitus is at least as likely as not associated with the hearing loss. The Veteran reported to the examiner that his tinnitus first occurred 6 to 8 months before the VA examination. The Veteran testified before the Board in June 2021 that he first experienced his symptoms of hearing loss during active duty service, that he was not aware of any tinnitus during service, and that he began to notice ringing in his ears in the late 1990s and early 2000s. An August 2021 statement of J. H., the Veteran's friend since childhood, attests to his personal knowledge that the Veteran complained to him of hearing problems when he returned from service and told him that there was ringing in his ears. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate nexus opinion must take into account a veteran's competent report as to the onset and history of the claimed disorder. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). In this case, the Board will remand for a new VA examination and nexus opinion in order for a VA examiner to take into account the Veteran's competent report that he has experienced hearing loss since active service. The claim of entitlement to service connection for tinnitus will also be remanded as being inextricably intertwined with the hearing-loss claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to service connection for an acquired psychiatric disorder, to include depression, insomnia, and PTSD. In October 2015, the Veteran filed a service-connection claim for "depression secondary to PAD [peripheral artery disease] left leg." A rating decision of February 2016 denied service connection for depression. The Veteran filed a NOD in August 2016 and VA Form 9 in January 2018. The Veteran testified before the Board that, while performing guard duty in Germany, he was on high alert for the possibility of a terrorist attack by the Red Army Faction, also known as the Baader-Meinhof Gang. His duties include patrolling on the base and in the area of nightclubs, sometimes with German police. This duty was stressful and upsetting to the Veteran and caused him to fear for his own safety and that of others. He was on "pins and needles," not knowing whether there was going to be an attack. He was also upset by other events relating to his service at the time, such as: arriving on the scene in which a 16-year old had killed his father because he had been beating the mother; holding a shotgun while looking for an escaped prisoner; anxiety when put on alert to be shipped out from Germany to Vietnam; and being on patrol with anxiety over the recent kidnapping and killing, by a Palestinian militant organization, of Israeli athletes participating in the 1972 Summer Olympics in Munich, West Germany. The Veteran stated that he had a constant feeling of fear for his own safety and well-being and, consequently, experienced in-service symptoms of anxiety, depression, difficulty concentrating, angry behavior toward fellow soldiers, nightmares, and interference with sleep. He did not seek treatment for his psychiatric symptoms until the late 1980s or early 1990s and self-medicated with drugs and alcohol. The Veteran's DD Form 214 lists his specialty was military police. Service personnel record note Article 15 proceedings relating to the Veteran's being absent from his unit "without authority" for 6 days in June 1971 and to threatening a sergeant with injury by assault in January 1972. He was not a combat veteran. A VA treatment record of November 2016 notes the Veteran's report of depression and anxiety, nightmares about being a military policeman in West Germany when terrorist groups was active, and intrusive memories related to fear experienced during service in Germany. In November 2017, the Veteran submitted a disability benefits questionnaire prepared by Dr. I. B. in September 2016. PTSD was diagnosed under the Diagnostic and Statistical Manual, 4th edition (DSM-IV) as the only mental disorder. In the opinion of I. B., the Veteran's PTSD is more likely than not a result of his military service. The rationale was, in part, that there were "constant incidents," and the Veteran was very fearful of his life, when he was an MP in the Army in West Germany in 1971 when the Red Brigade and other terrorist groups were active. It was noted that the Veteran's unit had been alerted to be deployed to Vietnam twice but did not go, and that the Veteran lived in a state of fear and apprehension at that time. The Board notes that the Veteran's claim was filed in October 2015 and that, effective August 4, 2014, any diagnosis of an acquired psychiatric disability should confirm to the DSM-5. 79 Fed. Reg. 149, 45094 (August 4, 2014). In November 2017, the Veteran underwent a VA examination for PTSD. Insomnia was the only diagnosed mental disorder. The Veteran's alleged stressors did not meet Criterion A for PTSD, which is exposure to actual or threatened death, serious injury, or sexual violation in one or more specified ways. Criteria B through I were also not met. In the examiner's opinion, the Veteran's insomnia was less likely than not incurred in, or caused by, an in-service injury, illness, or event. The stated rationale was that the Veteran states that this condition emerged approximately 3 to 4 years previously (over 40 years following military service) for reasons unknown to him. The scope of the Veteran's claim includes any acquired psychiatric disorder that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In general, service connection may be granted for more than one mental health disorder (PTSD or otherwise). Separate ratings may not be assigned for the same manifestations of service-connected disabilities. Service connection for PTSD generally requires a current medical diagnosis of PTSD pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM), medical evidence of a nexus between current symptomatology and the specific claimed in-service stressor, and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Under 38 C.F.R. § 3.304(f)(3), service connection may be granted for PTSD where there is: a current, valid diagnosis of PTSD; an in-service stressor that is consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony); a stressor that has been linked to a fear of hostile military or terrorist activity by a VA (or VA-contracted) psychiatrist/psychologist; and current PTSD symptoms that have been linked to the in-service stressor by the VA (or VA-contracted) psychiatrist/psychologist. The November 2017 VA examination report for PTSD did not consider the alleged stressor of fear of a terrorist attack by a group or groups known to be have been active in West Germany when the Veteran was stationed there. The Veteran has been diagnosed with PTSD by a non-VA clinician and argues for service connection based on an alleged stressor consisting of fear of hostile terrorist activity. Therefore, a remand for a new VA medical opinion is required. See Sanchez Navarro v. McDonald, 774 F.3d 1380, 1384 (Fed. Cir. 2014). Furthermore, a VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examiner did not acknowledge that a VA treatment record of September 2004 indicated that the Veteran was suffering from a minimal level of depression, and that a November 2016 VA treatment record made positive findings for depression and anxiety. The VA examiner also provided no support for his conclusory statement that "no reasonable nexus can be postulated" to connect a right leg disease during service to a current left leg disease. In addition, an adequate nexus opinion must take into account a veteran's competent report as to the onset and history of the claimed disorder. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). Here, the November 2017 VA examination report determined that the Veteran's sleep symptoms had begun only 3 or 4 years previously, without consideration of the Veteran's testimony before the Board that he experienced depression, anxiety, sleep difficulty, and other psychiatric symptoms during his active duty service. The Board will remand for a VA nexus opinion that takes into account this report of symptoms. In his claim filed in October 2015, the Veteran alleged that his depression is caused or aggravated by peripheral artery disease of the left leg. He has also testified that his tinnitus causes depression, anxiety, and sleep difficulty. Accordingly, the claim of entitlement to service connection for an acquired psychiatric disorder is intertwined with the remanded claims of entitlement to service connection for a left leg disorder and for tinnitus and will also be remanded for that reason as well. 5. Entitlement to serve connection for a left leg disorder, to include peripheral artery disease of the left leg. In October 2015, the Veteran filed a service-connection claim for peripheral artery disease of the left leg. The scope of the claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In October 2015, the Veteran filed a service-connection claim for peripheral artery disease, left leg. The Veteran filed a NOD in August 2016 and VA Form 9 in January 2018. Service connection may be awarded on a presumptive basis for certain current diseases listed in 38 C.F.R. § 3.309 (a), including arteriosclerosis, that manifested to a degree of 10 percent within 1 year of service separation or during service. Evidence of continuity of symptomatology may be sufficient to invoke this presumption. 38 C.F.R. § 3.303 (b). The Veteran testified before the Board that he had a blood clot in his left leg during service, was attached to an intravenous tube for 4 weeks as a result, and was ultimately medically cleared during service. The Veteran considered the blood clot to be healed after the in-service treatment. Two service treatment records of September 1971 note a swollen right thigh. According to the Veteran, the affected leg was misidentified in the service treatment records. That is, the disorder for which he was treated during service related exclusively to his left leg and not to the right leg. The Veteran testified that, approximately three years ago, he began to experience the same pain that he had had during service at the time of the blood clot. He states that he was told by a VA doctor that his current pain may be related to phlebitis in that leg during service. The Veteran testified that his current diagnosis, peripheral artery disease, was called phlebitis or a blood clot during his service. A VA treatment record of March 2013 notes an impression of no detectable flow in the mid-segment of the left superficial femoral artery (SFA), suggestive of short segment occlusion. A VA treatment record of June 1999 notes the Veteran's statement, when seen for a complaint of recent numbness of his left big toe, that he had a history of a deep vein thrombosis problem since 1971. In October 2017, the Veteran underwent a VA examination for artery and vein conditions. Diagnoses of S/P right lower extremity deep venous thrombosis (September 1971) and peripheral arterial disease, left superficial femoral artery (January 2014) were noted. The report noted, in the Medical History section, that the date of onset of symptoms was 3 -4 years ago, that the Veteran has severe pain in the left leg, and that he usually drags his left leg and foot. A negative nexus opinion was provided, with the rationale that no reasonable nexus could be postulated to connect a right thigh, deep, venous thrombosis that occurred in 1971 with a left superficial femoral arterial disease diagnosed by Doppler in 2014. As a layperson, the Veteran is competent to report his left leg symptoms during service and a contemporary medical diagnosis of a left leg blood clot during service. See Layno v. Brown, 6 Vet. App. 465 (1994). A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate nexus opinion must take into account a veteran's competent report as to the onset and history of the claimed disorder. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). In this case, the Board will remand for a new VA examination and nexus opinion in order for a VA examiner to take into account the Veteran's competent report that during service he was treated for a blood clot in his left leg, and not his right leg as allegedly misidentified in his service treatment records. The Board may not make its own unsubstantiated medical conclusion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The fact-finder, whether the agency of original jurisdiction or the Board, must assess the credibility of all the evidence and provide reasons for rejecting any evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). Adjudication of this service- connection claim may require the fact-finder to assess the credibility of the Veteran's report that he had blood clot in the left thigh, not the right thigh, during service. 6. Entitlement to a TDIU. In August 2016, the Veteran filed VA From 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. TDIU entitlement was denied by a rating decision of January 2017. The Veteran filed a NOD in July 2017 and VA Form 9 in January 2018. A request for a TDIU is not a freestanding claim, but rather a component of either an initial service-connection claim or a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board will remand the issue of entitlement to a TDIU as an aspect of the remanded service-connection claims. The matters are REMANDED for the following action: 1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain any outstanding records should be documented in the claims file. 3. Undertake appropriate development to request verification of claimed stressors that relate to possible service connection for PTSD. If any stressor cannot be verified, prepare a formal finding stating why verification could not be completed, and list the steps taken in any attempt to verify that stressor. 4. Schedule the Veteran for a medical examination to determine the nature and etiology of any hearing loss disorder. The examiner must opine as to whether any hearing loss disorder at least as likely as not: a. Is related to any in-service injury, disease, or event, to include the Veteran's account of the onset and history of his experienced symptoms of hearing loss; b. Had its inception during a period of active duty service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. Notify the examiner that, regardless of whether hearing loss is documented by service treatment records, evidence of a current hearing loss disorder and a medically sound basis for attributing that disorder to service may provide a basis for a grant of service connection for hearing loss, where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the acoustic injury in service. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that laypersons such as the Veteran are competent to attest to first-hand knowledge gained through the senses, including observable symptomatology. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 5. Schedule the Veteran for a medical examination to determine the nature and etiology of any tinnitus. The examiner must opine as to whether any tinnitus at least as likely as not: a. Is related to any in-service injury, disease, or event, to include the Veteran's account of the onset and history of his experienced tinnitus symptoms; b. Had its inception during a period of active duty service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; and e. Is proximately due to, or aggravated beyond its natural progression by, the Veteran's hearing loss. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that laypersons such as the Veteran are competent to attest to first-hand knowledge gained through the senses, including observable symptomatology, and that the U.S. Court of Appeals for Veterans Claims has specifically held that tinnitus, a ringing of the ears, is capable of lay observation. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 6. Regardless of whether any stressor has been verified, schedule the Veteran for a VA medical examination to determine the nature and etiology of any psychiatric disorder, to include depression, anxiety, sleep insomnia, and PTSD. A diagnosis of PTSD under the DSM-5 at any time from the filing of the Veteran's claim was filed in October 2015 to the present, even if now resolved, must be ruled in or ruled out by the examiner. If PTSD is diagnosed, the examiner must: a. Explain how the diagnostic criteria are met; b. Opine as to whether it is at least as likely as not that one or more in-service stressors support the diagnosis of PTSD; and c. Confirm that the claimed stressor of fear of hostile terrorist activity at least as likely as not supports a PTSD diagnosis and that the Veteran's symptoms are related to the claimed stressor. If PTSD is not diagnosed, the examiner must explain why a PTSD diagnosis is not supported and must explain why he or she does not concur with the private medical record that diagnoses PTSD. For all psychiatric disorders diagnosed other than PTSD, the examiner must opine as to whether each diagnosed disorder at least as likely as not: d. Is related to an in-service injury, disease, or event, to include the Veteran's account of depression, anxiety, sleep impairment, and other psychiatric symptoms first experienced during service; or e. Is caused, or aggravated beyond its natural progression by, a service-connected disability or any other disorder, to include tinnitus. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that laypersons, such as the Veteran, are generally considered competent to attest to matters of first-hand knowledge, including observable symptomatology. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 7. Schedule the Veteran for a medical examination to determine the nature and etiology of any disorder of the left leg, to include peripheral artery disease. The examiner must opine as to whether any such disorder at least as likely as not: a. Is related to any in-service injury, disease, or event, to include the Veteran's account of the of treatment for his left leg, not his right leg, during service; b. Had its inception during a period of active duty service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. If the examiner negatively answers Questions 6.a. through 6.d., above, the examiner must also provide separate answers to Questions 6.a. through 6.d., with the examiner being required to make the hypothetical assumption (made only for the purpose of providing this requested medical opinion) that the Veteran is correct in his statement that his in-service blood clot involved his left leg and not his right leg, despite the notation of "right leg" in the service treatment records. The examiner must also offer an opinion as to whether the Veteran's peripheral artery disease falls within the definition of, or is considered a form of, arteriosclerosis. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that laypersons such as the Veteran are competent to report a contemporary medical diagnosis and to attest to first-hand knowledge gained through the senses, including observable symptomatology, during and after military service. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.