Citation Nr: 21068567 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-36 783 DATE: November 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for bilateral hearing loss has been withdrawn. Entitlement to a total disability rating based on individual unemployability (TDIU) has been withdrawn. New and material evidence has not been submitted to reopen a claim of entitlement to service connection for a heart murmur is denied. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for vertigo/ dizziness is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. On the record at a January 2021 virtual Board hearing, the Veteran withdrew the claim for a rating in excess of 20 percent for bilateral hearing loss. 2. On the record at a January 2021 virtual Board hearing, the Veteran withdrew the claim for a TDIU. 3. The RO denied the Veteran's claim of entitlement to service connection for a heart murmur in a prior July 2013 rating decision. The Veteran was notified of the decision but did not appeal the decision. Therefore, the claim is final. 4. Evidence added to the record since the final July 2013 rating decision is either cumulative or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a heart murmur. 5. Resolving all reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder is granted. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to a rating in excess of 20 percent for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to a TDIU by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The July 2013 RO decision that denied the claim of entitlement to service connection for a heart murmur is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim for service connection for a heart murmur. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to October 1973. In January 2021, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board. A transcript of the hearing has been associated with the claims file. The Veteran has claimed entitlement to service connection for sleep apnea. However, as discussed below, the Board finds it necessary to recharacterize the issue to that of a claim for entitlement to service connection for a sleep disorder as it provides the most favorable adjudication for the Veteran. When a claimant makes a claim for service connection, he is seeking compensation for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Withdrawals 1. Bilateral hearing loss and TDIU 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. Id. The Federal Circuit Court of Appeals has held that an effective claim withdrawal on the record at a Board hearing must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In the present case, the Veteran stated his desire to withdraw the appeal of the claims of entitlement to a rating in excess of 20 percent for bilateral hearing loss and entitlement to TDIU on the record at the January 2021 hearing. The Board finds this to be an explicit and unambiguous withdrawal of the Veteran's claims with a full understanding of the effect of such withdrawal. There remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are dismissed. New and Material Evidence 2. Heart murmur The Veteran's claim of entitlement to service connection for a heart murmur was previously denied in a July 2013 rating decision. The Veteran was notified of the decision but did not file a notice of disagreement with respect to this claim. Therefore, the July 2013 decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The 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 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed a petition to reopen this claim in August 2016. The November 2016 rating decision currently on appeal continued the denial of this claim. In previously denying the Veteran's claim for service connection in the final July 2013 rating decision, the RO considered the available service treatment records that noted a diagnosis of a heart murmur on his October 1967 entrance examination. The RO further found there was no complaints pertaining to the heart murmur during service, and therefore no evidence that the pre-existing condition was aggravated by service. The evidence received since the last prior final denial of the claim in July 2013 relevant to this claim includes additional VA treatment records, the October 2017 Decision Review Officer synopsis, the Veteran's January 2021 Board hearing testimony, and the report of a March 2021 private psychiatric examination. The Board notes that the March 2021 private physician stated that, based on the Veteran's self-report and his reported history of anxiety, it is more likely than not that his anxiety aggravates his heart murmur. The physician provided no clinical evidence and, instead, repeated the Veteran's assertion as to the new theory of entitlement. Therefore, even though the Veteran is now bringing forth a new theory of entitlement concerning his heart murmur, a new theory of entitlement, without supporting evidence, does not constitute new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) ("The presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence."). Here, the physician's repetition of the Veteran's assertion would not support this theory. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. Accordingly, the petition to reopen the claim for service connection must be denied. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection 3. Acquired psychiatric disorder The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder that he alleges is due to his military service. Specifically, the Veteran states that, as a member of the color guard, he was required to bury well over 100 soldiers, who were close in age to himself, and he was frightened to think he could be next. See January 2021 Board Hearing Transcript; see also November 2017 Statement in Support of Claim. He also described experiencing discrimination by commission officers. See May 2018 VA Psychiatric Examination. 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). As an initial matter, the Board concludes that the Veteran has current diagnoses of depressive disorder, anxiety disorder, s of other specified trauma and stressor related disorder in accordance with the DSM 5. See November 2017 Private Psychiatric Examination, May 2018 VA Psychiatric Examination, and March 2021 Private Psychiatric Examination. The private and VA examiners all concluded that the current psychiatric disorders are the result of his in-service duties as a member of the color guard and due to experiencing discrimination during service. There are no conflicting etiological opinions of record. See id. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Thus, entitlement to service connection for other specified trauma and stressor related disorder is granted. REASONS FOR REMAND 1. Vertigo/ dizziness The Veteran asserts he suffers from vertigo/ dizziness that is due to his military service or, alternatively due to or aggravated by his service-connected bilateral hearing loss and tinnitus. See January 2021 Board Hearing Transcript. The Veteran's VA treatment records note reports of dizziness and "other disorders of the tympanic membrane," with an onset date of March 2012. See November 2016 VA Treatment Record. However, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the vertigo/dizziness is either directly due to service or secondary to the service-connected bilateral hearing loss and/ or tinnitus. As such, a remand is required for VA examinations and opinions. 2. Sleep disorder The Veteran also asserts that he suffers from a sleep disorder, claimed as sleep apnea, that is either directly due to his military service, or due to or aggravated by his now service-connected psychiatric disability. The Veteran's available VA and private treatment records indicate the Veteran was scheduled for a sleep consult by VA for March 2015 due to his reports of sleep apnea but he did not attend. Therefore, the VA treatment records indicate an assessment of insomnia, only. See September 2015 VA Treatment Record. The Veteran submitted a private examination in March 2021. At that time, the private examiner opined that there is comorbidity between the Veteran's symptoms of sleep apnea and his depression/ anxiety. Therefore, it is more likely than not that his sleep apnea is secondary to his depression and anxiety. The Board finds this opinion is inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the Veteran does not have a current diagnosis of sleep apnea, but he does have a diagnosis of insomnia. Moreover, the private physician did not provide an adequate rationale for his findings. However, to date, it is unclear whether the Veteran has a separate and distinct sleep disorder that is either directly due to his military service, or is due to or aggravated by his now service-connected psychiatric disability. Therefore, as the Board cannot make a fully-informed decision on this issue, a remand is required for a VA examination and opinion. The matters are REMANDED for the following action: 1. Obtain any available VA or private treatment records not currently associated with the claims folder dated from August 2018 to the present. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed dizziness/ vertigo disorder. A complete rationale for all opinions offered must be provided. The examiner is asked to provide an opinion on the following, with a full rationale: (a.) Confirm a diagnosis of dizziness/ vertigo, or any other tympanic membrane disorder. (b.) For each disorder, the examiner is asked to state the following: 1. whether each disorder is at least as likely as not (a 50 percent or greater probability) related to the Veteran's active service. 2. whether it is at least as likely as not that each disorder was caused by the service-connected bilateral hearing loss and/ or tinnitus, yes or no? 3. Is it at least as likely as not that the Veteran's disorders underwent any aggravation (incremental increase in disability, regardless of its permanence), due the service-connected bilateral hearing loss and/ or tinnitus, yes or no? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed sleep disorder. A complete rationale for all opinions offered must be provided. The examiner is asked to provide an opinion on the following, with a full rationale: (a.) Confirm a diagnosis of any current sleep disorder, to include insomnia. (b.) For each disorder, the examiner is asked to state the following: 1. whether each disorder is at least as likely as not (a 50 percent or greater probability) related to the Veteran's active service. 2. whether it is at least as likely as not that each disorder was caused by the service-connected psychiatric disorders, yes or no? 3. Is it at least as likely as not that the Veteran's sleep disorders underwent any aggravation (incremental increase in disability, regardless of its permanence), due the service-connected psychiatric disorders, yes or no? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 4. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.