Citation Nr: 21066105 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-48 648 DATE: October 28, 2021 ORDER The appeal for entitlement to service connection for left arm fracture residuals is dismissed. The appeal as to whether new or material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for a right eye disability as secondary to service-connection residuals of a nose fracture is remanded. Entitlement to a compensable initial rating for residuals of a nose fracture is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the May 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal as to entitlement to service connection for left arm fracture residuals was requested. 2. An October 2014 rating decision denied entitlement to service connection PTSD; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was received, or constructively received, within the appeal period as to this denial. 3. Evidence received subsequent to the October 2014 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD and raises a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. During the May 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal as to entitlement to service connection for left arm fracture residuals was requested. 2. An October 2014 rating decision denied entitlement to service connection for PTSD; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was received, or constructively received, within the appeal period as to this denial. 3. Evidence received subsequent to the October 2014 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD and raises reasonable possibility of substantiating this claim. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1979 to February 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA). In May 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file and reflects the record was held open for 30 days from the date of the hearing to allow the Veteran's representative to submit additional evidence. Thereafter, in June 2021, the Veteran's representative requested an additional 60 day extension, which was later granted in June 2021. In August 2021, the Veteran's representative submitted additional argument and evidence. In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, the Veteran's substantive appeal for the above listed issues was filed after February 2, 2013, specifically in October 2018, and the entirety of the additional evidence was submitted by the Veteran's representative. Further, during the May 2021 Board hearing, Veteran also waived initial consideration by the AOJ of all additional evidence, received after the most recent adjudication of the claims by the AOJ. Thus, the Board may proceed with appellate review. Additionally, regarding the characterization of the appeal as whether new and material evidence has been received to reopen a claim for entitlement to service connection for PTSD, the Board notes that claims that are based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996). However, what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, as the October 2014 rating decision rating decision, issued in conjunction with the Veteran's initial claim addressed the claim narrowly as a claim for PTSD and given the tension between Boggs and Clemons, the Board finds that in the circumstances of this case, the appropriate action is to characterize the claim to reopen narrowly as a claim for service connection for PTSD. Also, regarding the characterization of the issues on appeal, in May 2021 testimony, the Veteran raised the issue of a right eye disability in the context of his claim regarding his disagreement with the initial rating assigned for his residuals of a nose fracture. In this regard, in addition to considering entitlement to increased benefits, VA must consider entitlement to any additional benefits due to complications from the disability, and it is not necessary that the Veteran file a formal claim for service connection for such additional disability. Bailey v. Wilkie, 33 Vet. App. 188 (2021). Accordingly, the claim of entitlement to compensable initial rating for residuals of a nose fracture has been expanded to include the claim of service connection for a right eye disability under the theory of secondary service connection, and has been characterized as stated on the title page. As a final initial matter, with regard to the Veteran's representation, January 29, 2020 VA correspondence notified the Veteran that he had 90 days from the date of the letter, or until the Board issued a decision his appeal (whichever came first), to request a change in representation. Within this 90 day period, in March 2020, the Veteran appointed the Brad H. Andringa, attorney, as his representative. Thus, the Board will recognize Brad H. Andringa, attorney, as the Veteran's representative. 1. Entitlement to service connection for left arm fracture residuals 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. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the May 2021 Board hearing, the Veteran withdrew the appeal for service connection for entitlement to service connection for left arm fracture residuals. The undersigned Veterans Law Judge clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to this issue and that he had discussed the withdrawal with his representative. The Veteran expressed understanding of the consequences of such withdrawal as explained by the Veterans Law Judge, specifically that he may refile a claim for service connection as to this disability at any time, but as a consequence, any future grant of benefits would likely be no earlier than the date of a future claim for benefits for that disability. The Veteran also expressed that he understood that the undersigned Veterans Law Judge, when issuing a decision as to this issue, would just write a small paragraph explaining he decided to withdraw this issue at the hearing. As such, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the transcript of the hearing has been reduced to writing, the withdrawal during the hearing constitutes a written withdrawal. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a written notice of disagreement within the meaning of 38 U.S.C. § 7105). Hence, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. 2. Whether new or material evidence has been received to reopen a claim for service connection for PTSD Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim for service connection for PTSD was previously denied. In this regard, an October 2014 rating decision denied entitlement to service connection for PTSD. The Veteran did not timely file a notice of disagreement (NOD) as to this issue. Specifically, although a NOD was received in May 2016, the Veteran and his then representative were notified the May 2016 NOD was not timely in subsequent May 2016 correspondence. Additionally, no new and material evidence was received, or constructively received, during the appeal period as to this issue. Further, the Veteran has not argued the October 2014 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Following the October 2014 rating decision, the record reflects that service records were submitted by the Veteran's representative in August 2021. These records are largely duplicative of records associated with the record in March 2014. However, to the extent additional service records were received after October 2014 rating decision, these records are not relevant as they do not address factual issue that was dispositive against the Veteran in the October 2014 rating decision. Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021). Indeed, the Veteran's service records associated with the record in March 2014 documented, in part, he experienced performance issues and that he has not eligible for reenlistment due to frequent involvement of a discreditable nature with military authorities. Thus, the October 2014 rating decision rating decision is final and the provisions of 38 C.F.R. § 3.156 (c) are inapplicable as this claim. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Nonetheless, the new evidence submitted by the Veteran's representative in August 2021 also includes information regarding one of the Veteran's reported PTSD stressors, specifically that he was aboard the USS Rathburne during a typhoon. Specifically, the Veteran's representative provided information regarding the paths of three typhoons during the Veteran's service, specifically Betty in late 1980, Dinah in November 1980, and Freda in 1981. In this regard, the former entity known as the Joint Services Record Research Center (JSRRC), found, in October 2014, that review of the 1980 command history and the November 1980 deck logs of the USS Rathburne did not provide any record of any typhoons, hurricanes or storms. However, as the Veteran's representative has provided specific dates and identified these typhoons by name, details which were not addressed by the JSRRC in October 2014, this information at least triggers the duty to assist with respect to the Veteran's reported stressor and raises a reasonable possibility of substantiating the claim. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim to reopen service connection for PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. As discussed above, in August 2021, the Veteran's representative provided additional information regarding one of the Veteran's reported stressors during his service aboard the USS Rathburne in terms of the path of three typhoons, specifically Betty in late 1980, Dinah in November 1980 and Freda in 1981. Additionally, in an August 2014 statement, the Veteran reported when aboard the USS Rathburne, the ship had a lot of conflict, that once he went to get his relief and the sailor was dead, and another sailor got sucked up through an intake in the bottom of the ship. In an October 2014 statement, the Veteran reported additional PTSD stressors aboard the USS Rathburne, specifically in 1981 a sailor was killed while diving and the Veteran pulled him from the accident, that in 1981 or 1982 he was on guard duty and his relief was beaten to death, that during his entire time aboard ship there were many fights and attempts to throw sailors overboard, and that he stood watch through two hurricanes in the South China sea in late 1980 or early 1981. In May 2021 testimony, the Veteran also described, his first day aboard the USS Rathburne, he stepped through a hatch into the converging compartment and met a .45 pistol in his face, pushed the gun out of his face, disarmed the guy and as the guy said he was just playing, and gave him the weapon back. He also testified that later that night he woke up being beat on. He also testified that he was constantly getting beat up on. He further testified that he did not fit in any cliques and that every time he turned around he was hit with extra duty, which also wore him down and lessened his sleep. He also testified that, when the ship was in port in Pearl Harbor, Hawaii, he witnessed a fellow soldier being killed via a suction type accident. He also testified when the ship was in port in Kauai, Hawaii, the guard duty was supposed to change and the Veteran went to find the officer, a lieutenant commander, who was supposed to have been relieving another officer, and he found him dead in his stateroom. He also testified that he went through a hurricane more than once. A remand is required to allow VA to attempt to corroborate these reported stressors and send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5) for his in-service stressors involving a personal assault and then to provide an examination to address any verified stressor(s). Additionally, an examination is also needed to allow the Board to make a fully-informed decision on a direct incurrence basis. In this regard, an August 1981 service treatment record noted, in part, the Veteran had a provisional diagnosis ETOH (ethanol) and a death wish. Additionally, an October 1981 service treatment record noted, in part, that the Veteran had a history of ETOH and repeated episodes of provoking fights while intoxicated. Thus, an opinion on addressing the claim on a direct incurrence basis is warranted. In addition, an examination is also needed to allow the Board to make a fully-informed decision as to whether the Veteran has PTSD which clearly and unmistakably (undebatable) preexisted his service, and if so, whether it was clearly and unmistakably not aggravated by service. In this regard, a March 2011 VA treatment record, as other VA treatment records, documented, in part, that the Veteran reported he was beat daily on his way to school for having a German name and his father also was physically abusive toward him. Notably, the March 2011 VA treatment record also documented the Veteran's PTSD symptoms, specifically his reported nightmares, intrusive thoughts, being startled easily, the need to set up perimeter, and being on guard, were from childhood traumas. Another March 2011 VA treatment record also noted the Veteran reported a very abusive childhood, specifically his father was "a drunk" and his mother was controlling, that he was often beaten in school because he had a German name and was molested at age eight. Also, March 2011, July 2011, and January 2012 VA treatment records noted the Veteran had a long history of homelessness and alcohol dependence with PTSD from childhood trauma and that he also had antisocial personality disorder. Similarly, September 2013 and June 2015 treatment record also provided, in part, an assessment of depression, mood disorder probably associated with long term alcohol dependence, and PTSD secondary to childhood abuse. A June 2017 VA treatment record also documented the Veteran reported sexual abuse when he was six to eight years old and stated that he had his PTSD symptoms even before he joined the military and his military experiences just made them worse. Thus, an opinion on this basis is warranted. Finally, in light of the remand for the above matters, as the record reflects the Veteran receives continuing VA treatment from the Dayton VA Medical Center (MC) and VA Northeast Ohio Healthcare System, updated VA treatment from the Dayton VAMC, since July 2018, and the VA Northeast Ohio Healthcare System, since September 2018, should be obtained and associated with the record. 2. Entitlement to service connection for a right eye disability as secondary to service-connection residuals of a nose fracture is remanded. 3. Entitlement to a compensable initial rating for residuals of a nose fracture is remanded. The record reflects the Veteran's residuals of nose fracture may have increased in severity warranting a new examination. Specifically, in May 2021 testimony, the Veteran reported his residuals of a nose fracture symptomology, specifically his ability to breathe, had gotten worse since 2018. He also testified that he was willing to report for a VA examination, and did not recall why he did not report for the last scheduled examination in March 2018. Further, as discussed above, in May 2021 testimony, the Veteran asserted he had right eye disability due to his residuals of a nose fracture. Bailey, 160 F.3d at 1365. In this regard, a September 2006 VA treatment record noted, in part, the Veteran had scar tissue under his right eye secondary to old trauma, which may support the Veteran's contention. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his residuals of nose fracture and to address the newly raised claim for service connection for a right eye disability on a secondary basis. 4. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is based on the Veteran's service-connected residuals of nose fracture, as this is his only service-connected disability. Thus, as the issue of entitlement to a TDIU is intertwined with the initial increased rating claim for the Veteran's residuals of nose fracture, a remand is warranted for the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's VA treatment records not already of record, to include updated VA treatment from the Dayton VAMC, since July 2018 to the present, and the VA Northeast Ohio Healthcare System since September 2018 to the present. 2. Send the Veteran notice required for PTSD claims based on a personal assault, and allow time for a response. 3. Attempt to corroborate the Veteran's in-service stressors, including: (a.) experiencing three typhoons aboard the USS Rathburne, specifically Betty in late 1980, Dinah in November 1980, and Freda in 1981; (b.) when the ship was in port in Pearl Harbor, he witnessed a fellow soldier being killed via a suction type accident; and (c.) when the ship was in port in Kauai, the guard duty was supposed to change and the Veteran went to find the officer, a lieutenant commander, that was supposed to have been relieving the other officer, and he found him dead in his stateroom. 4. After completion of the above development, schedule the Veteran for a psychiatric examination to determine whether the Veteran has PTSD caused or aggravated by service. (a.) Please opine whether it is at least as likely as not the PTSD is related to a verified in-service stressor. Please explain. For purposes of the examination, the clinician must take as fact that the Veteran has carried a diagnosis of PTSD during the appeal. (b.) If the answer to the above question is negative, did the Veteran's PTSD clearly and unmistakably (undebatably) preexist his service? VA treatment records indicate that the Veteran had PTSD prior to service due to childhood traumas. (c.) If the examiner finds a psychiatric disorder did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? Please explain. 5. Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected residuals of nose fracture. The examiner should address the following: (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's residuals of nose fracture under the rating criteria. (b.) The examiner should also determine whether it is as least as likely as not that the Veteran has a right eye disability which is proximately due to his service-connected residuals of nose fracture? A September 2006 VA treatment record noted, in part, the Veteran had scar tissue under his right eye secondary to old trauma. Please explain. (c.) The examiner should also determine whether it is as least as likely as not the Veteran has a right eye disability, which is aggravated, i.e., any increase in disability, by his service-connected residuals of nose fracture? Please explain. 6. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.