Citation Nr: 21008726 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-11 511 DATE: February 17, 2021 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for Guillain Barre Syndrome is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disorder, namely PTSD, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service connected acquired psychiatric disorder, is remanded. Entitlement to service connection for a throat disorder, to include as secondary to sleep apnea, is remanded. Entitlement to service connection for Guillain Barre Syndrome is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In a November 2015 rating decision, the Regional Office (RO) denied service connection for PTSD, tinnitus, and left lower extremity Guillain Barre Syndrome; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the November 2015 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for an acquired psychiatric disorder, Guillain Barre Syndrome, and tinnitus. 3. The Veteran’s acquired psychiatric disorder, namely PTSD, is etiologically related to in-service events. CONCLUSIONS OF LAW 1. The November 2015 rating decision denying the Veteran’s claim for service connection for PTSD, Guillain Barre Syndrome, and tinnitus is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. New and material evidence has been received and the claim seeking service connection for Guillain Barre Syndrome is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. New and material evidence has been received and the claim seeking service connection for tinnitus is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. The criteria for service connection for an acquired psychiatric disorder, namely PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from May 1992 to May 1996, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 submission, the Veteran’s attorney requested the full 90-day period after the case returned to the Board (i.e., until January 2021) in order to submit arguments and additional evidence. The Board granted this Motion for Extension of Time in a February 2021 letter. Additional argument has been received and this requested time period has expired. Therefore, the Board may proceed with adjudication in this case. Petitions to Reopen Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Acquired Psychiatric Disorder, Tinnitus, and Guillain Barre Syndrome The AOJ denied the Veteran’s claims of service connection for PTSD, Guillain Barre Syndrome of the left lower extremity, and tinnitus in a November 2015 rating decision, finding that the Veteran did not have a diagnosis of PTSD and that the Veteran’s Guillain Barre Syndrome and tinnitus were neither occurred in nor caused by service. Evidence considered includes the Veteran’s service treatment records, VA treatment records and VA examinations. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). The evidence received since the November 2015 rating decision includes evidence that is both new and material to the claim. For example, private treatment records show a diagnosis of PTSD. This new evidence addresses the reason for the previous denial; that is, that the Veteran did not have a diagnosis of PTSD. With regard to tinnitus and Guillain Barre Syndrome, the Veteran and his representative have added several statements to the record that relate to the etiology of each disability. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened and will be considered on the merits. Service Connection Acquired Psychiatric Disorder The Veteran asserts that he has an acquired psychiatric disorder that is related to service. Specifically, the Veteran contends that he developed an acquired psychiatric disorder due to in-service trauma he experienced as a result of witnessing two plane accidents that resulted in the death of the pilots, and having to clean up body parts following one of the crashes. With respect to an in-service stressor, the Veteran reported that he witnessed an aircraft accident aboard the U.S.S. Abraham Lincoln in which the aircrew were violently ejected and resulted in the death of one pilot. The Veteran reported that recovery of the body parts of the individual killed was his duty. See Statement in Support of Claim for Service Connection for PTSD dated in March 2018. An August 1993 letter to the Veteran’s parents from the commander of the Veteran’s flight squadron indicated that there was a carrier landing accident and the loss of a pilot. The Board therefore concedes the Veteran’s reported stressor. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM). 38 C.F.R. § 4.125(a). In an October 2020 private medical opinion report, a private psychologist diagnosed the Veteran with PTSD and opined that it was at least as likely as not related to the in-service events reported above. In reaching this conclusion, the provider noted that the Veteran began experiencing symptoms of PTSD during service that increased in severity shortly after his separation from service and have been continuous since that time. The Board finds that the October 2020 private opinion report is adequate because the examiner reviewed the claims file and discussed relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that the October 2020 examination and opinion report is the most probative evidence of record. The Board acknowledges that in September 2015, a VA examiner found that the Veteran did not have a diagnosis of PTSD but found that he had a diagnosis of specified anxiety disorder. The examiner opined that the Veteran’s specified anxiety disorder was not related to service. However, as mentioned above, the October 2020 provider found that the Veteran did, in fact, have a diagnosis of PTSD. Thus, the Board finds that the Veteran has an acquired psychiatric disorder, namely PTSD, that is related to his period of active service. In this regard, the Veteran has a current diagnosis of PTSD and his reported in-service stressor has been conceded. Moreover, the October 2020 private provider opined that the Veteran’s acquired psychiatric disorder, specifically PTSD, that is related to his period of active service. Giving the Veteran the benefit of the doubt, the Board finds that preponderance of the evidence supports the claim and entitlement to service connection for an acquired psychiatric disorder, namely PTSD, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND The Board finds that additional information is required before the remaining claims on appeal are decided. Service Connection Tinnitus The Veteran asserts that his current tinnitus is a result of in-service noise exposure. In September 2015, the Veteran was afforded a VA audiology examination, and diagnosed with tinnitus. The Veteran reported that his tinnitus began in approximately 2002 or 2003. The examiner opined that the Veteran’s tinnitus was less likely than not caused by his active military service. The Board finds that the September 2015 VA examination report is inadequate to decide the claim. In this regard, the examiner based the negative opinion on the absence of treatment for tinnitus in the Veteran’s service treatment records. That alone is not a sufficient basis for a negative conclusion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). As the opinion is not adequate, it cannot serve as the basis of denial of entitlement to service connection. Therefore, the Board finds that a remand is necessary to obtain an adequate medical opinion regarding the nature and etiology of the Veteran’s tinnitus. Guillain Barre Syndrome The Veteran asserts that he has left lower extremity Guillain Barre Syndrome as a result of his active duty service, to include as due to environmental exposure during the Gulf War. At a September 2015 VA examination, the examiner opined that the Veteran’s diagnosed Guillain Barre Syndrome was less likely than not related to the Veteran’s active service. In reaching this conclusion, the examiner commented that the Veteran’s Guillain Barre Syndrome did not develop until five years after the Veteran’s separation from service, and that it developed shortly after the Veteran had experienced an upper respiratory infection, which the examiner cited as being one of several risk factors for developing Guillain Barre Syndrome. The Board finds that it is unable to decide the claim based on the findings contained within the September 2015 VA medical opinion report. In this regard, the examiner did not address the Veteran’s claim that his Guillain Barre Syndrome is related to environmental exposures during the Gulf War. Moreover, the examiner did not detail the significance between the Veteran’s upper respiratory infection and the development of Guillain Barre Syndrome. Thus, the Board finds that a new VA medical opinion is warranted to address the nature and etiology of the Veteran’s Guillain Barre Syndrome. Obstructive Sleep Apnea The Veteran asserts that he has obstructive sleep apnea as a result of his active duty service, to include as due to service-connected disabilities. In December 2020, the Veteran also submitted medical literature that supports a nexus between PTSD and sleep apnea. To date, no VA medical opinion has been obtained with regard to the Veteran’s claimed sleep apnea. Therefore, the Board finds that a VA medical opinion is warranted to address the nature and etiology of his claimed sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Throat Disorder The issue of entitlement to service connection for a throat disorder is inextricably intertwined with the claim of entitlement to service connection for obstructive sleep apnea remanded herein, as the Veteran has claimed that his throat disorder may be secondary to obstructive sleep apnea. Hence, a determination on this claim should be deferred pending final disposition of the claim for entitlement to service connection for obstructive sleep apnea. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated from May 2018 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an otolaryngologist, or other qualified medical examiner, to determine the nature and etiology of the Veteran’s tinnitus. The need for an audiological examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s tinnitus had its onset during his active service, or is otherwise etiologically related to such service, to include whether any injury due to loud noise exposure experienced therein contributed to his tinnitus. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate medical examiner to determine the nature and etiology of the Veteran’s Guillain Barre Syndrome. The need for an in-person examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s Guillain Barre Syndrome had its onset during his active service, or is otherwise etiologically related to such service, to include Gulf War environmental exposure. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed obstructive sleep apnea. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether: (A) It is at least as likely as not (50 percent or better probability) that any currently present obstructive sleep apnea had its onset during his active service, or is otherwise etiologically related to such service, to include Gulf War environmental exposure. (B) It is at least as likely as not (50 percent or better probability) that the Veteran’s obstructive sleep apnea was caused OR aggravated by his now service-connected acquired psychiatric disorder, to include PTSD? The examiner should comment on the Journal of Clinical Sleep Medicine article submitted by the Veteran’s attorney in October 2020. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 5. Following the completion of the above, the Agency of Original Jurisdiction should consider whether additional development is warranted as a result of the above (e.g., development for a throat disorder). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.