Citation Nr: 21076063 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-16 846 DATE: December 22, 2021 ORDER As the appeal has been withdrawn, the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is dismissed. As the appeal has been withdrawn, the claim of entitlement to service connection for a bilateral foot disorder is dismissed. The petition to reopen the previously denied claim of entitlement to service connection for tinnitus is granted. Service connection for tinnitus is granted. REMANDED Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected migraine headaches is remanded. FINDINGS OF FACT 1. At the September 2021 Board hearing, the Veteran explicitly and unambiguously withdrew the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss, with a full understanding of the consequences of such action. 2. At the September 2021 Board hearing, the Veteran explicitly and unambiguously withdrew the issue of service connection for a bilateral foot disorder, with a full understanding of the consequences of such action. 3. An unappealed January 2007 rating decision denied service connection for tinnitus; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim 4. The Veteran's tinnitus began during active service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the petition to reopen a claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the issue of entitlement to service connection for a bilateral foot disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The January 2007 rating decision denying the claim for service connection for tinnitus is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to May 2001, and from February 2002 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. See Hearing Transcript (September 2021). It is noted that the Veteran is represented by Jan Dils in matters before VA. However, Jan Dils did not present for the scheduled hearing and, in lieu, attorney Heather Van Hoose represented the Veteran at the hearing with full consent of the Veteran. See Hearing Transcript at 2. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss is dismissed. 2. Entitlement to service connection for a bilateral foot disorder is dismissed. 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. An oral withdrawal of an appeal, such as one made at a 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 claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (noting that the Board must address all three prongs of the DeLisio standard when it applies). At the September 2021 Board hearing, the appellant withdrew the claim for hearing loss and foot disability on appeal. The Veteran indicated that she understood the consequences of the withdrawal and that it decision to do so was made in consultation with her attorney. See Hearing Transcript at 3. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues of entitlement to service connection for a bilateral foot disorder and the petition to reopen a claim of entitlement to service connection for bilateral hearing loss and they are dismissed. 3. New and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. The Veteran contends that her tinnitus began during active duty and has existed since that time. See Hearing Transcript at 12. The Board finds that new and material evidence has been submitted in support of a claim for service connection for tinnitus; accordingly, the claim is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, 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). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Here, a January 2007 rating decision denied service connection for tinnitus because the Veteran's service treatment records (STRs) are silent for tinnitus. See Rating Decision (January 2007). VA received no appeal or new and material evidence prior to expiration of the appeal period. Although it appears that additional STRs were submitted after the January 2007 rating decision, those records do not contain any information regarding tinnitus, other than noting the Veteran was routinely noise exposed, which is duplicative of STRs that were already of record. See STR Medical (November 2015); STR Medical (November 2002); Medical Treatment Record Government Facility (May 2006). 38 C.F.R. § 3.156(c). The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the January 2007 decision includes STRs, VA medical records, and a VA examination report. The STRs and VA medical records are silent for complaints of tinnitus. See Medical Treatment Record Government Facility (May 2006); Medical Treatment Record Government Facility (June 2006); STR Medical (January 2007). The November 2006 VA examination diagnosed tinnitus. See VA Examination (December 2006). The Veteran reported that tinnitus began in 2005 and that she was exposed to artillery and mortars while in Iraq. See VA Examination (December 2006). Evidence submitted after the January 2007 decision includes testimony from the Board hearing and VA treatment records. At the hearing, the Veteran testified that onset of tinnitus was in 2005, during service, and that it had continued since that time. See Hearing Transcript at 12. VA treatment records did not contain additional information regarding tinnitus. See CAPRI (February 2016); CAPRI (July 2017); CAPRI (February 2018); CAPRI (September 2018); Medical Treatment Record Government Facility (October 2007); Medical Treatment Records Furnished by SSA (March 2016); Medical Treatment Record Non-Government Facility (July 2017). The Board finds that new and material evidence has been presented. The evidence, including the Veteran's lay testimony, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of symptoms during service and continuous symptoms of tinnitus thereafter. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the petition to reopen is granted. 4. Service connection for tinnitus is granted. The Veteran contends that her tinnitus began during active duty and has existed since that time. See Hearing Transcript at 12. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board finds that the preponderance of the evidence demonstrates that there is a current diagnosis of tinnitus that began during active duty and has existed since that time; service connection is thus warranted. At the Board hearing, the Veteran reported that she has ringing in the ears. See Hearing Transcript at 12. The Veteran also provided testimony that her tinnitus began after going to the gun range during active duty. See Hearing Transcript at 12. The Board finds this testimony competent because tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that tinnitus is subjective and the kind of condition which lay evidence is competent to describe, to include the time of onset). The Board also finds the Veteran's testimony regarding in-service onset and symptoms since discharge credible as it has been consistent during the appeal and consistent with over evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For example, in the November 2006 VA examination, the Veteran reported current tinnitus that began in 2005 (although it was unclear if this was during service or after her May 2005 discharge). See VA Examination (December 2006). The timing of this statement, just over 18 months after service discharge also supports the Veteran's testimony that the tinnitus has been ongoing since onset during service. There is no medical opinion of record regarding tinnitus, thus there is only evidence in favor of tinnitus beginning during active duty. The probative evidence of record, therefore, demonstrates that tinnitus began during service and has existed since that time. Accordingly, and after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD is remanded. 2. Entitlement to an evaluation in excess of 30 percent for service-connected migraine headaches is remanded. The Veteran contends that her PTSD symptoms such as anxiety, suspiciousness, sleep impairment, memory impairment, disturbance of mood and motivation, persistent delusions or hallucinations, and difficulty in establishing and maintain relationships, entitle her to at least a 70 percent evaluation. See Hearing Transcript at 4. The Veteran contends that she is having headaches happening two to three times per week and that they interfere with her employment. See Hearing Transcript 10-11. The Board finds that remand is required for recent VA treatment records and VA examination. First, remand is required for current VA examinations. Although the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. 38 C.F.R. § 3.159; Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The most recent VA PTSD examination was conducted in 2017. See C&P Exam (September 2017). At the Board hearing, the Veteran stated that her anxiety and paranoia had recently been increasing; this suggests a potential worsening of PTSD symptoms. See Hearing Transcript at 6. Remand is thus warranted for a current VA PTSD examination. The most recent VA headaches examination was conducted in April 2013, after the Veteran did not RSVP to a scheduled 2017 examination. See VA Examination (April 2013); C&P Exam (July 2017). It is not clear, however, how the Veteran was contacted for an RSVP because the examination inquiry shows both an incorrect address and a correct address. See C&P Exam (July 2017). There is no documentation in the claims file of how VA attempted to contact the Veteran, to include a letter or phone call notifying her of a scheduled examination. Notably, the Veteran had previously notified the AOJ of her recent address change. See Third Party Correspondence (June 2017). Additionally, at the Board hearing, the Veteran stated that her headaches are worse than they used to be, as they are now happening at least 2 to 3 times per week; this suggests a potential worsening of headache symptoms. See Hearing Transcript at 10-11. Remand is thus warranted for a current VA examination. Second, remand is required to obtain relevant VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). Here, the Veteran has testified that she only receives VA treatment, that she was seen at VA in November 2020 for her psychiatric symptoms, and that she was seen at VA a few weeks prior to the hearing. See Hearing Transcript at 11, 15, 20. The most recent VA treatment records are dated in August 2018. See CAPRI (September 2018). Accordingly, remand is required to obtain recent VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2018 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (Continued on next page) 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.