Citation Nr: 21077529 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-54 901 DATE: December 30, 2021 ORDER The appeal for the issue of entitlement to service connection for bilateral hearing loss is dismissed. The appeal for the issue of entitlement to service connection for tinnitus is dismissed. As new and material evidence has been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of lumbar spine with spondylosis (hereinafter "back disability") is remanded. FINDINGS OF FACT 1. In September 2021, prior to the promulgation of a decision in the appeal, the Veteran reported his request to withdraw his appeal for the issues of entitlement to service connection for bilateral hearing loss and tinnitus. 2. In a March 2012 VA rating decision, the claim for entitlement to service connection for PTSD was denied; the Veteran was notified of this action and of his appellate rights but did not file a timely notice of disagreement (NOD). 3. Within one year of the March 2012 rating decision, the Veteran received VA treatment for anxiety disorder and depressive disorder in April 2012, and this evidence was not new and material. 4. The evidence received since the March 2012 VA rating decision, regarding service connection for PTSD, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the issue of entitlement to service connection for bilateral hearing loss, have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the appeal with respect to the issue of entitlement to service connection for tinnitus, have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 19.55. 3. The March 2012 VA rating decision, denying service connection for PTSD, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 4. New and material evidence has been received since the March 2012 VA rating decision to reopen service connection for PTSD. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1960 to March 1964. The Board has recharacterized the Veteran's claim for PTSD with depression and anxiety more broadly to an acquired psychiatric disability, to include PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Before reaching the merits of the claim for an acquired psychiatric disability, to include PTSD, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim of PTSD. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized this issue accordingly. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105(d)(5). A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 19.55. In a September 2021 written correspondence, prior to the promulgation of a decision in the appeal, the Veteran reported his "wish to stop the claim for tinnitus and bilateral hearing loss only." As of this date, the current appeal consists of the pending claims for entitlement to service connection for bilateral hearing loss and tinnitus. As the Veteran has withdrawn his appeal of these issues, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for PTSD The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In the March 2012 VA rating decision, service connection for PTSD was denied. The Agency of Original Jurisdiction (AOJ) explained in a March 2012 notice letter that the available evidence of record did not show a current diagnosed disability, a link between the Veteran's medical condition and military service, or that the Veteran experienced a stressful event in service. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD. In April 2012 (within one year of the denial), he was referred to VA psychology for PTSD. The psychologist diagnosed depression and anxiety disorder. This record was not associated with the claims file at the time of the November 2016 denial. At the time of the March 2012 denial, a VA psychology treatment record from December 2011 was in the claims file and it provided a diagnosis of depression from a psychologist. At the December 2011 appointment, the Veteran had reported service in Vietnam and service in three man boats doing recon missions. At a December 2011 VA examination for PTSD, he reported serving on signal boats. He described a feeling of "general sense of vulnerability," stated that he slept on every island in the Gulf of Tonkin, and that later he was on the ship that fired the first shots of the Vietnam war, but did not describe being attacked himself. The April 2012 VA treatment record is not new and material because it does not raise a reasonable possibility of substantiating the claim. It does not provide a medical diagnosis of PTSD and instead confirms a diagnosis of depression. It adds a diagnosis of anxiety disorder. But it does not address the claimed stressors, and it does not address a nexus. Even though it added a diagnosis of anxiety disorder, a psychiatric disorder was already present and an additional diagnosis therefore simply confirms that the current disability requirement was met. The record does not provide other pertinent information. It does not raise a reasonable possibility of substantiating the claim. Therefore, the March 2012 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. On August 12, 2016, the Veteran's request to reopen his claim for PTSD was obtained and associated with the record. Evidence received since the March 2012 VA rating decision includes an August 2016 VA Form 21-0781 (Statement in Support of Claim for PTSD), November 2016 VA Form 21-0958 (NOD), and testimony at the October 2021 Board hearing. Specifically, the Veteran reported that while aboard the USS Maury in the Gulf of Siam from November 1960 to June 1962, he was scared to death and feared for his life on a daily basis while completing secret surveying missions. The Board finds that this argument is new and material to the element of establishing an in-service occurrence, which was not considered at the time of the March 2012 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303 (2020). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD Since separation from active service and during the appeal period since 2016, review of VA treatment records document assessments of depression in 2017 and 2019. Additionally, as previously noted above, review of the August 2016 VA Form 21-0781 (Statement in Support of Claim for PTSD), November 2016 VA Form 21-0958 (NOD), and October 2021 Board hearing transcript shows the Veteran's report that while aboard the USS Maury in the Gulf of Siam from November 1960 to June 1962, he was scared to death and feared for his life on a daily basis while completing secret surveying mission. In light of such lay and medical evidence, the Board finds that additional development is needed to determine the existence and etiology of an acquired psychiatric disability, to include PTSD, during the appeal period. 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. §§ 3.159, 3.303 (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board emphasizes that it is not determining whether or not the Veteran's assertion of an in-service occurrence regarding fear of hostile military or terrorist activity while aboard the USS Maury is credible at this time, as the additional development set forth in the directives below could impact that determination. 2. Entitlement to a rating in excess of 20 percent for back disability During the course of the appeal, the Veteran was afforded VA examinations for back (thoracolumbar spine) conditions in September 2015 and September 2019. Since then, the Veteran reported at the October 2021 Board hearing his desire to get his treating physician to perform updated range of motion testing of his lumbar spine. He also explained that since 2019 his wife now has to help him get dressed, including putting his belt through the loops and putting on his shirt. In light of such assertions and the last VA treatment record dated in August 2019 associated with the claims file, additional development is needed to properly adjudicate the appeal. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2017); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records dated since August 2019. If these records cannot be located, it must specifically document the attempts that were made to locate them and the Veteran must be notified. 2. Then, schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disability, to include PTSD. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: VA treatment records dated in 2011, 2017, and 2019 show assessments of depression The Veteran reported that while aboard the USS Maury in the Gulf of Siam from November 1960 to June 1962, he was scared to death and feared for his life on a daily basis while completing secret surveying missions, as noted in the August 2016 VA Form 21-0781 (Statement in Support of Claim for PTSD), November 2016 VA Form 21-0958 (NOD), and October 2021 Board hearing transcript The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric diagnosis(es) under the DSM-5 criteria began during active service or is related to an incident of service, to include consideration of the Veteran's reported incidents while aboard the USS Maury. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his back disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.