Citation Nr: 21015652 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 20-13 778 DATE: March 18, 2021 ORDER The appeal of the claim for an effective date earlier than January 29, 2018 for the award of service connection for bilateral hearing loss has been withdrawn. The appeal of the claim for an effective date earlier than January 29, 2018 for the award of service connection for tinnitus has been withdrawn. The appeal for service connection for hypertension has been withdrawn. The appeal for service connection for a prostate disorder has been withdrawn. The appeal for an initial rating greater than 10 percent for tinnitus has been withdrawn. REMANDED Service connection a low back disorder is remanded. Service connection for diabetes mellitus type 2 is remanded. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and a major depressive disorder, is remanded. An initial compensable rating for bilateral hearing loss is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT At the January 2021 Board hearing, the Veteran requested a withdrawal of the appeal of the claims for an effective date earlier than January 29, 2018 for the award of service connection for bilateral hearing loss, an effective date earlier than January 29, 2018 for the award of service connection for tinnitus, service connection for hypertension, service connection for a prostate disorder, and an initial rating greater than 10 percent for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the claims for an effective date earlier than January 29, 2018 for the award of service connection for bilateral hearing loss, an effective date earlier than January 29, 2018 for the award of service connection for tinnitus, service connection for hypertension, service connection for a prostate disorder, and an initial rating greater than 10 percent for tinnitus by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to October 1979 and from May 1986 to November 1989. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. At that time, the Veteran raised the issue of entitlement to a TDIU due in part to service-connected disabilities. Thus, the issue is part of the appeal. Although the Agency of Original Jurisdiction (AOJ) framed the issues regarding the psychiatric disorder separately as PTSD, anxiety disorder, and major depressive disorder, the Board has combined them into one broader issue. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Withdrawn Claims 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. Effective date earlier than January 29, 2018 for the award of service connection for bilateral hearing loss Effective date earlier than January 29, 2018 for the award of service connection for tinnitus Service connection for hypertension Service connection for a prostate disorder Initial rating greater than 10 percent for tinnitus In the present case, the appellant has withdrawn his appeal of the claims for an effective date earlier than January 29, 2018 for the award of service connection for bilateral hearing loss, an effective date earlier than January 29, 2018 for the award of service connection for tinnitus, service connection for hypertension, service connection for a prostate disorder, and an initial rating greater than 10 percent for tinnitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these claims, and they are dismissed. REASONS FOR REMAND Service connection a low back disorder Service treatment records show that the Veteran complained of pulling a muscle in his back in October 1975. However, there are no associated examination findings or diagnoses, or any other treatment records. Post service, a February 2017 private MRI shows disc herniation, and an August 2020 VA MRI shows degenerative disc disease and spondylosis. At the January 2021 hearing, he indicated that, while he had back problems in service, he did not seek treatment because it was not considered manly. He testified that his current low back problems began in 2016. Given the above, the AOJ should provide the Veteran with an examination to determine if he has a low back disorder that had its onset in, or is related to, his active service. Also, an October 2018 VA medical record shows that the Veteran has received private medical care for his low back disorder. Thus, the AOJ should attempt to obtain those treatment records. Service connection for diabetes mellitus type 2 The Veteran asserts that he developed diabetes due to epidural steroid injections for his low back disorder. VA medical records show that he was already on medication for diabetes as of February 2018. They also show a history of four epidural steroid injections for back pain as of April 2018. As the remand of the low back disorder claim could affect the diabetes claim, the claims are inextricably intertwined and a decision on the diabetes claim at this time would be premature. While on remand, the AOJ should attempt to obtain any private treatment records. Service connection for a psychiatric disorder, to include PTSD, anxiety disorder, and major depressive disorder Service treatment records show diagnoses of obsessive compulsive personality disorder, claustrophobia, simple phobia, personality disorder, and adjustment disorder versus depressed mood. At a July 2018 VA examination, the Veteran did not report any specific in-service stressor. Rather, he simply noted that he may have been in a firefight. The examiner concluded that the Veteran did not meet the diagnostic criteria for a psychiatric disorder. However, the Veteran has submitted VA treatment records showing a diagnosis of a major depressive disorder in February 2020 and PTSD in September 2020. The PTSD was noted as developing after miliary trauma. Also, in a May 2019 report of psychiatric evaluation, a private physician indicated that the Veteran’s PTSD is due to military trauma, specifically the stressor of believing that his submarine was going to be hit with a torpedo by a Soviet submarine. Thus, the AOJ should provide the Veteran with a new examination to determine if he has a psychiatric disorder that had its onset in, or is related to, his active service. While the most recent VA treatment records associated with the claims file by the AOJ date to February 2020, the record shows that the Veteran has since received subsequent treatment. Thus, the AOJ should obtain updated treatment records. Initial compensable rating for bilateral hearing loss At the January 2021 Board hearing, the Veteran indicated that his bilateral hearing loss had worsened since the last VA examination in July 2018. Thus, he should be provided with a new examination to determine the current severity of his disability. TDIU As the remand of the above claims could affect the claim for a TDIU, the claims are inextricably intertwined. A decision on the TDIU claim at this time would be premature. Accordingly, these matters are REMANDED for the following action: 1. Ask the Veteran to submit an authorization form for each healthcare provider who has treated him for his low back disorder, diabetes, psychiatric disorder, and hearing loss. Obtain all adequately identified records. 2. Obtain all VA treatment records since February 2020. 3. Then, schedule the Veteran for an examination to determine the etiology of his low back disorder. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disorder had its onset during his active service or within one year thereafter—or is otherwise causally related to such service. The examiner should discuss the service treatment records and VA and private treatment records. The examiner should also discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. 4. Also, schedule the Veteran for an examination to determine the etiology of any currently diagnosed psychiatric disorder. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should discuss the service treatment records and VA and private medical records, including the May 2019 report of psychiatric evaluation. The examiner should also discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. The examiner should address the following. (a.) If the examiner diagnoses the Veteran with PTSD, then the examiner should identify the stressor on which the diagnosis is based. [The Veteran’s stressor is believing that his submarine was going to be hit with a torpedo by a Soviet submarine.] (b.) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disorder other than PTSD had its onset during active service or is causally related to such service. 5. Also, provide the Veteran with an appropriate examination to determine the severity of his bilateral hearing loss. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.