Citation Nr: 21075613 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-58 509 DATE: December 21, 2021 ORDER The appeal as to whether new and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral knee disorder is dismissed. The appeal as to whether new and material evidence has been received to reopen the claim for entitlement to service connection for a kidney disorder is dismissed. The application to reopen the claim for service connection for right ear hearing loss is granted. The application to reopen the claim for service connection for a lumbar spine disorder is granted. The application to reopen the claim for service connection for a cervical spine disorder is granted. The application to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for right ear hearing loss disability is granted. Service connection for an acquired psychiatric disorder, diagnosed as panic disorder and somatic symptom disorder, is granted. Service connection for a lumbar spine disorder, diagnosed as degenerative discopathy and spondylosis, is granted. Service connection for a cervical spine disorder, diagnosed as arthritic changes with disc narrowing at C3-C6, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder (other than panic disorder and somatic disorder), to include PTSD, major depressive disorder, and anxiety disorder, is remanded. Entitlement to a compensable rating for hearing loss (now bilateral) is remanded. FINDINGS OF FACT 1. At the August 2021 Board hearing, prior to the promulgation of a decision by the Board, the Veteran indicated his desire to withdraw his appeal as to the claims for service connection for right and left knee disorders and for a kidney disorder. 2. Unappealed August 1988, December 2006, and July 2010 rating decisions denied the claim for service connection for bilateral hearing loss. 3. Evidence received since the July 2010 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss. 4. An unappealed August 1991 Board decision denied the claim for service connection for a low back disorder and an unappealed March 2010 rating decision declined to reopen the claim for service connection for a low back disorder. 5. Evidence received since the March 2010 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disorder. 6. An unappealed July 2010 rating decisions denied the claim for service connection for a cervical spine disorder. 7. Evidence received since the July 2010 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disorder. 8. An unappealed March 2009 rating decision denied the claim for service connection for PTSD. 9. Evidence received since the March 2009 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 10. The evidence is at least in equipoise as to whether the Veteran's right ear hearing loss disability is aggravated by his service-connected tinnitus disability. 11. The Veteran's panic disorder and somatic symptoms disorder is related to service. 12. The evidence is at least in equipoise as to whether the Veteran's lumbar and cervical spine disorders are related, at least in part, to an injury sustained in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to whether new and material evidence has been received to reopen the claim for entitlement to service connection for right and left knee disorders are met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal as to whether new and material evidence has been received to reopen the claim for entitlement to service connection for a kidney disorder are met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204. 3. The August 1988, December 2006, and July 2010 rating decisions that denied the claim for service connection for hearing loss are final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 20.1103. 4. New and material evidence has been received since the last denial of service connection for right ear hearing loss and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a). 5. The August 1991 Board decision and the March 2010 rating decision that denied the claim for service connection for a lumbar spine disorder are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103. 6. New and material evidence has been received since the last denial of service connection for a lumbar spine disorder and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a). 7. The March 2010 rating decision that denied the claim for service connection for a cervical spine disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103. 8. New and material evidence has been received since the last denial of service connection for a cervical spine disorder and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a). 9. The March 2009 rating decision that denied the claim for service connection for PTSD is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 20.1103. 10. New and material evidence has been received since the last denial of service connection for PTSD and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a). 11. The criteria to establish entitlement to service connection for right ear hearing loss as secondary to the service-connected tinnitus disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 12. The criteria to establish entitlement to service connection for panic disorder and somatic symptoms disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 13. The criteria to establish entitlement to service connection for a lumbar spine disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 14. The criteria to establish entitlement to service connection for a cervical spine disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2013, February 2015, and October 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). There are several appeal streams that have been merged to adjudicate the Veteran's claims more efficiently. As it pertains to the claim for service connection for right ear hearing loss, this issue stems from a February 2015 rating decision (characterized as bilateral hearing loss). The Veteran filed a timely Notice of Disagreement (NOD) in February 2016. A Statement of the Case was issued by the RO in December 2018, and the Veteran submitted his substantive appeal in December 2018. Regarding a compensable rating for left ear hearing, the Veteran was initially granted service connection for left ear hearing loss in an October 2018 rating decision. The Veteran filed a NOD in December 2018, and a statement of the case was issued in February 2020. The Veteran submitted a substantive appeal in March 2020. In May 2020, the Board remanded the claim for an additional VA examination. The issue was readjudicated in October 2020 and is now again before the Board for adjudication. The remaining claims on appeal stem from an August 2013 rating decision. The Veteran testified at a Board hearing in August 2021 before the undersigned Veterans Law Judge as to all issues listed above; a transcript of the hearing is of record. Withdrawal of Issues 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In DeLisio v. Shinseki, 25 Vet. App. 45 (2011), the Federal Circuit Court clarified what constitutes an effective verbal withdrawal of an appeal. Specifically, a verbal withdrawal of an appeal at a hearing is effective "only where it is (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, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). The Board finds that the Veteran clearly expressed an intent to withdraw his claims as to whether new and material evidence had been received to reopen the claim for service connection for a bilateral knee disorder and kidney disorder. See August 2021 Board hearing at pgs. 8 and 9 (Veteran was specifically asked if he would like to withdraw the issues; Veteran responded "Yes"). The Board finds that the Veteran's withdrawal of the claims was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. As such, the Veteran's verbal withdrawal of the claim during the August 2021 Board hearing meets all three prongs of the DeLisio standard and is therefore an effective withdrawal. There remain no allegations of errors of law or fact for appellate consideration as it pertains to these issues. Accordingly, the Board does not have jurisdiction to review the claims and they are dismissed. New and Material Evidence ClaimsLaws and Analysis The Veteran was initially denied service connection for hearing loss in an August 1988 rating decision. The issue was again denied in December 2006 and July 2010 rating decisions. The Veteran was notified of the rating decisions but did not appeal the decisions and new and material evidence was not received within a year of the decisions. As such, the August 1988, December 2006, and July 2010 rating decisions became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As it pertains to the lumbar spine disorder, the Board denied the claim in an August 1991 decision. The Veteran did not appeal the 1991 Board decision; as such, it became final. See 38 C.F.R. § 20.1100 (a). Following the Veteran's claim to reopen service connection for a lumbar spine disorder, a March 2010 rating decision determined that new and material evidence had not been submitted to reopen the claim for service connection for a lumbar spine disorder. The Veteran was notified of the rating decision but did not appeal the decision and new and material evidence was not received within a year of the decision. As such, the March 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Regarding the claim for service connection for a cervical spine disorder, the claim was initially denied in a July 2010 rating decision. The Veteran was notified of the rating decision but did not appeal the decisions and new and material evidence was not received within a year of the decision. As such, the July 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran's claim for service connection for PTSD was initially denied in a March 2009 rating decision. The evidence at that time did not show a confirmed diagnosis of PTSD and the RO determined that the Veteran's in-service stressor (i.e., military sexual trauma) had not been corroborated. The Veteran submitted a notice of disagreement in October 2009 and a statement of the case was issues in January 2011; however, the Veteran did not file a substantive appeal to the Board. As such, the March 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the March 2009 (PTSD), July 2010 rating decision (hearing loss and cervical spine), and the March 2010 rating decision (lumbar spine disorder) were the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's hearing loss claim was initially denied as the RO found that there was no nexus to service. The evidence received subsequent to the July 2010 rating decision includes, in pertinent part, a September 2020 VA audiological examination report confirming a hearing loss disability in the right ear and indicating that the Veteran's service-connected tinnitus "makes it difficult to hear." As it pertains to the lumbar spine disorder, the claim was denied because the evidence did not show that the Veteran had a chronic back disability during service. See August 1991 Board decision. The evidence received subsequent to the March 2010 rating decision includes, in pertinent part, an October 2021 private medical opinion authored by Dr. Shoag, who is identified as a board-certified internal medicine physician. This report provided a positive nexus opinion between the Veteran's lumbar spine disorder and service. Regarding the cervical spine disorder, the RO initially denied the claim as there was no evidence showing that the Veteran's disorder was related to service. The evidence received subsequent to the March 2010 rating decision includes, in pertinent part, an October 2021 private medical opinion authored by Dr. Shoag. This report provided a positive nexus opinion between the Veteran's cervical spine disorder and service. As for the Veteran's claim for service connection for PTSD, the claim was initially denied because the Veteran's claim of military sexual assault had not been corroborated. A review of the evidence at the time of the March 2009 rating decision also does not show a confirmed diagnosis of PTSD. The evidence received subsequent to the March 2010 rating decision includes, in pertinent part, a March 2017 VA psychiatry note where the Veteran was diagnosed with major depressive disorder and anxiety disorder with some symptoms of panic and "post traumatic naturehx mst." It was further noted that the Veteran had "significant PTSD symptoms" and it was felt that the Veteran would benefit from group therapy. VA treatment records in 2018 also show a positive screening for PTSD. During the August 2021 Board hearing, the Veteran indicated that he was molested by a sergeant in the military in March 1970. He reported having panic attacks and nightmares soon after service separation. Additional details were also provided regarding the purported military sexual trauma in a report by Dr. Austin-Small dated in October 2021. The Board finds that the evidence discussed above is new and material within the meaning of applicable law and regulations because it is probative of the issues at hand. The VA examination report conducted in 2020, the private medical opinion obtained in October 2021, and the August 2021 Board hearing are new, as such evidence was not of record prior to the issuance of the March 2009, July 2010 and March 2010 rating decisions. Moreover, this evidence is material, as it relates to the unestablished element of a possible relationship between the Veteran's right ear hearing loss and his service-connected tinnitus disability, and between his lumbar spine disorder, cervical spine disorder, and PTSD and service. Accordingly, the Board finds that the newly added evidence relates to unestablished facts necessary to substantiate the Veteran's claims of service connection for right ear hearing loss, a lumbar spine disorder, a cervical spine disorder, and PTSD. Accordingly, the claims are reopened. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Right Ear Hearing Loss The Veteran seeks service connection for right ear hearing loss. The Veteran has a right ear hearing loss disability for VA compensation purposes. See September 2020 VA audiological examination report (showing a speech discrimination score of 80 percent in the right ear); see also 38 C.F.R. § 3.385. The Veteran is currently in receipt of service connection for tinnitus and left ear hearing loss. See October 2018 rating decision. The Board considers the issue of secondary service connection and finds that the evidence is at least in equipoise as to whether the Veteran's right ear hearing loss is aggravated by his service-connected tinnitus disability. In this regard, the evidence includes the September 2020 VA audiological examination report. At that time, the Veteran reported having constant, bilateral tinnitus. In discussing the functional impact of the service-connected tinnitus disability, the examiner indicated that the Veteran's tinnitus "makes it difficult to hear." Here, the Board finds that the Veteran's constant tinnitus disability likely aggravates his right ear hearing loss disability. In Ward v. Wilkie, the United States Court of Appeals for Veterans Claims held that, for secondary service connection, "aggravation" need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds the criteria to establish service connection for right ear hearing loss as secondary to the service-connected tinnitus disability are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lumbar and Cervical Spine Disorders Initially, the Board finds that the Veteran is currently diagnosed with lumbar spondylopathy and degenerative discopathy at L2-L3. See 2009 VA MRI report. He is also diagnosed with degenerative changes of the cervical spine and disc narrowing at C3-C6 with cervical radiculopathy. See e. g., January 2011 MRI report; see also X-ray report dated March 2010. The Veteran reported that he originally sustained an injury to his mid-thoracic spine while in the military in a pole climbing accident. See April 2016 VA treatment record. He reported, that more recently, in the last 3-4 months, the pain had become severe and constant. The Veteran reported a similar injury during the August 2021 Board hearing. The Board also notes that, during service, the Veteran served as a field wireman; his reported injury is consistent with the duties of his service. Moreover, his service records include a March 1970 sick slip for a back injury; however, no further details were provided. The remaining service records are absent for any neck or back complaints, diagnoses, or treatment. The Veteran has not been afforded a VA spine examination as it pertains to his lumbar or cervical spine. Nonetheless, the Veteran submitted a private medical evaluation dated in October 2021 from Dr. Shoag, a board-certified physician in internal medicine. Dr. Shoag indicated that the Veteran injured his back in service as evidenced by the 1970 sick slip record. According to the Veteran, the injury occurred when he was pulled up a pole in a harness while training as a wireman. The Veteran indicated that he felt sharp pain in his hip, legs, and knees. He was ultimately diagnosed with a chronic lumbar sprain after service. Dr. Shoag also reviewed the Veteran's claims file, and noted that, in April 1978, the Veteran reported having right leg pain. In February 2008, the Veteran noted the persistent nature of his back pain while being seen for a different condition. In July 2009, the Veteran underwent a lumbar MRI, which showed evidence of degenerative discopathy of the lumbar spine with mild central canal stenosis, degenerative arthropathy right nerve root impingement at L4-L5, and a Tarlov cyst at the SI level on the left. He again had diagnostic imaging in March 2009, which revealed evidence of mild lumbar spondylosis. In 2009, he was diagnosed with a right paracentral disc protrusion at T9-10. In October 2009, while at the Bay Pines VA, he was diagnosed with sciatica, and his pain was noted to be present from his neck down to his lower extremities. On a 1978 Compensation and Pension application completed by the Veteran, he referenced "stiffness in neck" from 1970 onward. It was noted in his record that his cervical spine was injured while in service. Ever since 1970, the Veteran stated that his neck pain persisted and that he would self-treat by rest, over-the-counter medications, and thermal therapy. In 1978, he was in a motor vehicle accident and noted a return of the same pain. Then in 2006-2007, the Veteran was seen for neck, arm, and hand pain by Harish Patel, MD., at St. Peter Hospital. In March 2009, he was seen by Dr. Patrick Muloy, with complaints of waking with numbness in his arms involving his fingers. His neck stiffness and pain persisted as well. Cervical spondylosis and degenerative disc disease were noted. Dr. Shoag indicated that since service, the Veteran had experienced intermittent low back pain, thoracic pain, and neck pain, explaining that the pain "waxed and waned" throughout the years but never fully resolved. The Veteran also reported that, due to financial inability to pay for medical treatment, he had not always received care. The Veteran indicated that he often self-treated with over-the-counter medications. Dr. Shoag then opined that the Veteran's cervical and lumbar spine disc disease were the direct result of the trauma sustained in service. Dr. Shoag referenced and discussed various medical articles in support of his opinion. Dr. Shoag also acknowledged that the Veteran was involved in a post-service automobile accident which increased the Veteran's low back and neck pain. However, the Veteran explained that his pain was in the same location subsequent to the accident as prior to the accident and that the nature of the pain did not change. Dr. Shoag referenced and discussed various medical articles in support of his opinion. The Board finds the opinion from Dr. Shoag to be highly probative as to whether the Veteran's spine disorders are related, at least in part, to service. Dr. Shoag interviewed the Veteran, discussed relevant medical evidence and literature in detail, and provided an opinion supported by a well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). The Board has reviewed the remaining evidence of record and finds that there are no other medical opinions that are contradictory to Dr. Shoag's findings. As such, the Board finds that service connection for the Veteran's lumbar and cervical spine disorders is warranted. Panic Disorder and Somatic Symptom Disorder The Board finds that service connection for panic disorder and somatic symptoms disorder is warranted. Service records do not show that a pre-existing disability diagnosed as panic disorder or somatic disorder was noted at service entrance. However, during a September 1970 Report of Medical History, completed at service separation, the Veteran specifically checked "YES" as to having "nervous trouble of any sort." Moreover, the Veteran submitted a private psychiatric evaluation, dated in October 2021, from Dr. Austin-Small, a licensed psychologist. Dr. Austin-Small reviewed the claims file, interviewed the Veteran, and discussed in detail the Veteran's mental health history and symptoms. Following psychiatric testing, Dr. Austin-Small diagnosed the Veteran with panic disorder. It was noted that the Veteran continued to have panic attacks involving heart pounding, fear, feeling as though he could not concentrate and terror at least once a week. The Veteran indicated that he first recalled having these symptoms while atop the high poles he was training on during military service. He recalled feeling especially panicked that he would fall off them and his panic was worsened by his training sergeant and others in his command laughing at him. Since that time, the Veteran has had frequent panic symptoms often related to social interactions and expectations. Dr. Austin-Small opined that the Veteran' s panic disorder as likely as not began during the course of military service. In addition, Dr. Austin-Small opined that the Veteran met the diagnostic criteria for somatic symptom disorder. The Veteran displayed disproportionate and persistent thoughts about his physical symptoms and the seriousness he believed they represented. He had persistently high anxiety around his health and symptoms, leading him to at times go to the emergency room. The Veteran was also preoccupied with his somatic symptoms throughout the records. He devoted considerable time and energy into documenting his symptoms, observing his symptoms and going from doctor to doctor looking to get further treatment for symptoms that are routinely found to be benign or related to his anxiety. His insight into his symptoms of feeling shaky, pounding or noise in his head, difficulty swallowing when anxious, dry mouth and other symptoms as representative of anxiety rather than physical ailment is extremely poor. The Veteran indicated that these symptoms began in service during his training in climbing poles as a lineman. He attended sick call for his symptoms, but stated that nothing was ever found, and they did not seem to believe him. Based on all evidence, Dr. Austin-Small opined that the Veteran's somatic symptom disorder as likely as not began during military service. On review of all evidence, the Board finds that the medical evidence weighs in favor of the Veteran's claim. In so finding, the Board affords great probative weight to the private psychiatric examination conducted by Dr. Austin-Small and the referenced medical opinion. There are no contradictory opinions of record. For these reasons, the Board grants service connection for a panic disorder and somatic symptom disorder. REASONS FOR REMAND Psychiatric Disorders (other than Panic Disorder and Somatic Disorder) The Veteran's claim for service connection for PTSD is now reopened. Further, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. at 5. In this case, the lay and medical evidence of record demonstrates that the Veteran has been diagnosed with various psychiatric disorder, including major depressive disorder and anxiety disorder. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. The Board notes that pre-service medical records confirm a diagnosis of transient situational personality disturbance in 1968. In the October 2021 psychiatric evaluation, Dr. Austin-Small opined that the Veteran's major depression began prior to military service. However, the pre-service mental health notes did not indicate any symptoms or diagnoses of depression. Dr. Austin-Small indicated that the Veteran did not have any difficulties with depression until after experiencing significant trauma in the military and feeling as though he was humiliated and useless in his training. It was opined that the Veteran's depression, which existed prior to service, was likely worsened beyond its ordinary course by his experiences in service. The Board finds this opinion inadequate as the Veteran's pre-service treatment records do not show any diagnosis, symptoms, or treatment for depression. Personality disorders are not diseases or injuries under VA regulations and, therefore, are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303 (c). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the pre-existing personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127. Service connection might also be granted if it is subsequently determined that the "personality disorder" was in fact the early onset of an acquired psychiatric disorder. Therefore, on remand, an opinion is required as to whether the Veteran's psychiatric disorders (other than panic disorder and somatic disorder) were incurred or aggravated in service and superimposed upon the pre-existing personality disorder. Further, a remand is needed to clarify whether the Veteran has PTSD. According to a February 2009 VA psychiatric examination report, the Veteran did not meet the criteria for PTSD, and instead was diagnosed with a major depressive disorder and an anxiety disorder. It was further noted that the Veteran's military sexual assault (MST) reports were "rather vague." More recent VA treatment records show that the Veteran is diagnosed with major depressive disorder and anxiety disorder with some symptoms of panic and "post traumatic naturehx mst." It was further noted that the Veteran had "significant PTSD symptoms" and it was felt that the Veteran would benefit from group therapy. VA treatment records in 2018 also show a positive screening for PTSD. During the August 2021 Board hearing, the Veteran indicated that he was molested by a sergeant in the military in March 1970. He reported having panic attacks and nightmares soon after service separation. The October 2021 private medical opinion from Dr. Austin-Small further outlines details of the Veteran's purported in-service military sexual trauma. See id at pg. 2. Thus, on remand, the Veteran should be afforded a new VA psychiatric examination to clarify any diagnosed psychiatric disability (other than panic disorder and somatic disorder), to include whether he meets the DSM IV or 5 criteria for PTSD. Additionally, the examiner is asked to detail the Veteran's claimed in-service MST, if cooperation by the Veteran is received. Rating for Hearing Loss The issue of entitlement to a compensable rating for his left ear hearing loss disability is on appeal here. However, given the grant of service connection for right ear hearing loss awarded herein, the claim for an increased rating is now for bilateral hearing loss. Once the RO assigns a disability rating for the right ear hearing loss, the issue of entitlement to an increased rating for bilateral hearing loss may be adjudicated by the RO. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, the Veteran testified during the August 2021 Board hearing that his hearing loss disability (right and left ear) had worsened since his last VA examination in 2020. A new audiological examination should be obtained for this reason as well. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of all psychiatric disorders (other than panic disorder and somatic disorder). The entire claims file must be made available to and be reviewed by the examiner. The examiner is asked to address the following: (a.) List all current psychiatric disorders pertaining ot the Veteran (other than for panic disorder and somatic disorder). The examiner must make the following determinations under both the DSM-IV and the DSM-5. (b.) For each currently diagnosed psychiatric disorder (other than panic disorder and somatic disorder), provide an opinion as to whether the Veteran's psychiatric disorder at least as likely as not (50 percent probability or greater) (1) clearly and unmistakably preexisted service, and, if so; (2) clearly and unmistakably was NOT aggravated by service. *To ensure that the correct legal standard is applied, the examiner's opinion MUST BE STATED IN TERMS OF whether the disorder "clearly and unmistakably preexisted service" AND whether the disorder "clearly and unmistakably was NOT aggravated by service." (c.) If the Veteran has a personality disorder, provide an opinion as to whether it was subjected to a superimposed disease or injury in service that resulting in a current acquired psychiatric disorder. In other words, does the Veteran have a current psychiatric problem that amounts to a superimposed disability which, at least as likely as not, resulted from, and in addition to, the personality disorder that preexisted active duty? (d.) If the Veteran's psychiatric disorder(s) did not pre-exist service entrance, state whether it is at least as likely as not (50 percent probability or higher) that the Veteran's disorder(s) had its onset in, or is otherwise related to, active service. (e.) Elicit from the Veteran a full history and/or description of his active service, to include his claimed MST stressors. **Please review Veteran's statements in the report by Dr. Austin-Small dated in October 2021 at pg. 2. (f.) If a diagnosis of PTSD is deemed appropriate, the examiner is requested to provide an opinion as to whether the Veteran exhibited symptoms and behaviors consistent with behavioral changes expected to follow from the claimed MST, and if so, whether PTSD is related to the alleged MST. (g.) Opine as to whether any of the Veteran's psychiatric disorders (other than panic disorder and somatic disorder) are at least as likely as not (50 percent probability or higher) either caused or aggravated by the now service-connected panic disorder and somatic disorder disabilities. (h.) A rationale for all opinions expressed must be provided. 2. Schedule the Veteran for a VA audiology examination to determine the severity of his now service-connected bilateral hearing loss disability. 3. Implement the Board's grant of service connection for right ear hearing loss. 4. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.