Citation Nr: 21022947 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-31 670 DATE: April 19, 2021 ORDER A rating in excess of 10 percent for bilateral hearing loss has been withdrawn. A rating in excess of 10 percent for tinnitus has been withdrawn. As new and material evidence has been received, the petition to reopen the claim for service connection for a low back disability is granted. Service connection for an acquired psychiatric disorder, to include major depressive disorder with anxious distress, moderate-severe with psychotic features, anxiety, dysthymic disorder, and an adjustment disorder, is granted. REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On June 24, 2020 and March 8, 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran’s authorized representative that a withdrawal of the issues of an increased rating for bilateral hearing loss and an increased rating for tinnitus was requested. 2. The evidence received in March 8, 2021, in the form of lay evidence, was new, because it had not been previously associated with the file, and material, because it was lay evidence of an in-service occurrence. 3. The competent and probative evidence is at least in equipoise as to whether the Veteran’s current acquired psychiatric disorder had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of an increased rating for bilateral hearing loss and an increased rating for tinnitus by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2020). 2. The criteria for reopening the previously denied claim of service connection for a low back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder with anxious distress, moderate-severe with psychotic features, anxiety, dysthymic disorder, and an adjustment disorder, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to July 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2018 and November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that additional evidence was added to the record since the October 2019 Statement of the Case. However, the Veteran, through his representative has waived consideration by the Agency of Original Jurisdiction (AOJ). See 3/8/2021 Court Documents – General, at page 5. Accordingly, the Board may consider the evidence of record. The Veteran appealed the denial of the claim for service connection for right ear hearing loss. See 1/21/2019 NOD. However, an October 2019 rating decision granted service connection for right ear hearing loss. As such, this matter is no longer on appeal due to the full grant and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Additionally, as discussed below, the Veteran withdrew the rating issue for bilateral hearing loss. Regarding the claim for service connection for an acquired psychiatric disorder, the Veteran’s representative requested VA to obtain outstanding Charleston VAMC mental health treatment records from September 6, 2019 to the present. See 5/21/2020 VA Form 10-5345. However, the absence of the records is not prejudicial to the Veteran as the Board is granting the full benefit sought on appeal. 1. A rating in excess of 10 percent for bilateral hearing loss. 2. A rating in excess of 10 percent for tinnitus. 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(a). Appeal withdrawals must include the name of the veteran, the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 19.55(b). In the present case, the Veteran has withdrawn the issues of an increased rating for bilateral hearing loss and an increased rating for tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. See 6/24/2020 CAVC Decision; see also 3/8/2021 Court Documents – General, at page 3 (noting that the Veteran desires to withdraw the issues of an increased rating for bilateral hearing loss and an increased rating for tinnitus). These documents comply with 38 C.F.R. § 19.55(b) as it provided the Veteran’s name, VA file number, and a statement that the appeal is withdrawn. See Hembree v. Wilkie, No. 33 Vet. App. 1 (2020) (holding that, unlike an oral withdraw at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant, but needs to comply with the applicable regulation). Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. 3. As new and material evidence has been received, the petition to reopen the claim for service connection for a low back disability. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran initially filed his claim in January 2016. An August 2016 rating decision denied his claim. In doing so, the basis was last of an event, disease, or injury in service. The Veteran did not submit a timely substantive appeal, and new records were added to the file, but they are not material as they did not go the basis of the August 2016 denial. As such, this rating decision became final. The current appeal began when the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation) in April 2017. Since at that time his decision was final, he needed to submit new and material evidence to reopen the claim. The Board finds that the Veteran submitted new and material evidence to reopen his claim in the form of lay evidence received in March 2021. The Veteran asserted that he hurt his back in-service due to manual labor and carrying heavy objects as part of his military occupancy specialty of heavy equipment operator. See 3/8/2021 Court Documents – General, at pages 19 and 20. This evidence is new because it was not previously associated with the file, and material because it tends to support the Veteran’s contention of an in-service incident, a basis of his previous denial in August 2016. 4. Service connection for an acquired psychiatric disorder, to include major depressive disorder with anxious distress, moderate-severe with psychotic features, anxiety, dysthymic disorder, and an adjustment disorder. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection generally requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran contends that his acquired psychiatric disorders are related to active military service. Specifically, the Veteran asserted that his psychiatric disorder was secondary to his service-connected tinnitus. See 7/25/2017 VA Form 21-526EZ. At the outset, the Board notes that the Veteran was diagnosed with moderate, recurrent major depressive disorder, depression, anxiety, dysthymic disorder, and an adjustment disorder. See 12/30/2017 CAPRI, at pages 51, 127, and 140; see also 7/22/2020 Medical Treatment Record – Government Facility, at page 16. Additionally, during the September 2017 VA examination, the Veteran was diagnosed with major depressive disorder with anxious distress, moderate-severe with psychotic features. See 9/29/2017 C&P Examination. As to the second element of service connection, the Veteran asserted that he endured daily racist behavior, threats, abuse, harassment, and humiliation by his in-service senior officer. See 8/8/2017 VA Form 21-0781a; see also 8/18/2017 VA Form 21-0781a; 1/9/2018 VA Form 21-0820. The Board finds the Veteran to be credible in describing the in-service incident as it is consistent with other evidence of record, to include a subsequent Article 15. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran’s lay reports of symptoms). Thus, the second element of service connection is also met. The question before the Board therefore becomes whether there is a so-called “nexus” between the Veteran’s acquired psychiatric disorders and service. In September 2017, a VA examiner provided a negative nexus opinion. As rationale, the examiner reported that his psychiatric disorder was not caused by tinnitus; however, the examiner stated that his disorder was from military service. See 9/29/2017 C&P Examination. In June 2018, after a review of the available records at the time, the same VA examiner (as from September 2017) provided a negative opinion. As rationale, the examiner reported that the Veteran was not diagnosed with posttraumatic stress disorder and that the Veteran did not cite any personal trauma. See 6/6/2018 C&P Examination. The Board finds this opinion inadequate since the examiner did not provide an opinion about the Veteran’s diagnosed psychiatric disabilities. The record showed a private positive nexus opinion from Dr. E.T, Ph.D. As rationale, Dr. E.T. reported that the Veteran felt overwhelmed and stressed as a consequence of the experience of being abuse and harassed by a superior officer. See 8/14/2020 Medical Treatment Record – Non-Government Facility, at page 6. Although there is some confusion about the way the examiner from the September 2017 VA examination worded his opinion, coupled with the private positive nexus opinion, and resolving any doubt in favor of the Veteran, the Board finds that the Veteran’s acquired psychiatric disorder is related to service. 38 U.S.C. § 5107(b). Therefore, the criteria of service connection for an acquired psychiatric disorder, to include major depressive disorder with anxious distress, moderate-severe with psychotic features, anxiety, dysthymic disorder, and an adjustment disorder, are met and service connection is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Service connection for migraines is remanded. After review of the record, another remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for his migraine headache disability. Specifically, the Veteran asserts that his migraine disability is due to his service-connected tinnitus. See 7/25/2017 VA Form 21-526EZ. Additionally, the Veteran asserts that his migraine disability began in service, that he experiences daily headaches, and that they have worsened. See 3/8/2021 Court Documents – General, at page 21. The Veteran’s service treatment record showed an episode where the Veteran complained of frontal headache. See 3/3/2016 STR – Medical, at page 8. During an April 2017 VA examination, the reviewing clinician diagnosed with migraine including migraine variants. The reviewing clinician rendered a negative opinion, mentioned the episode of frontal headache in the Veteran’s service treatment records, and stated that there were no other complaints or treatments in-service. See 6/19/2017 C&P Examination. The Board finds this opinion inadequate. The reviewing clinician rendered a conclusory statement and did not provide a proper medical analysis and rationale for the opinion or discussed the Veteran’s medical history. Additionally, the reviewing clinician did not base his conclusion on the full claims record, since medical records, not examined by the reviewing clinician, showed the Veteran’s continued complains of headaches. Further, more recent lay evidence from the Veteran stated that he experiences daily headaches due to light and noise. See 12/30/2017 CAPRI, at pages 31 and 46; see also 3/28/2018 CAPRI, at page 14; 3/8/2021 Court Documents – General, at page 21. Furthermore, the reviewing clinician from the June 2017 VA headache examination rendered a negative nexus opinion. As rationale, the examiner stated that the Veteran was not on prescribed medication for migraines. In addition, the examiner stated that there was no record of chronicity of treatment post-service until March 2017. See 6/19/2017 C&P Examination. The Board finds this opinion to be incomplete, at best. As mentioned, the examiner reported that since service there was no treatment until 2017; however, the examiner did not explain why this was important. Additionally, the reviewing clinician did not base his conclusion on the full claims record, since medical records, not examined by the reviewing clinician, showed that the Veteran was prescribed migraine medication. See 10/18/2018 CAPRI, at page 4. As such, on remand, the RO is to obtain an addendum opinion that considers the full claims file and to determine if the diagnosed migraine including migraine variants is related to the in-service episode of frontal headache. 2. Service connection for a low back disability is remanded. 3. Service connection for obstructive sleep apnea is remanded. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his OSA and low back disabilities were due to active military service. Specifically, the Veteran, through his representative, suggested that his OSA disability was secondary to his service-connected tinnitus and his now service-connected acquired psychiatric disorder. See 3/8/2021 Court Documents – General, at page 11. Additionally, the Veteran asserted that he hurt his back in-service due to manual labor and carrying heavy objects as part of his responsibilities as a heavy equipment operator. See 3/8/2021 Court Documents – General, at pages 19 and 20. VA treatment records showed that the Veteran was diagnosed with OSA confirmed by polysomnography. See 3/28/2018 CAPRI, at page 10. Additionally, the record showed that a magnetic resonance imaging diagnostic test revealed that the Veteran had multilevel degenerative disc change with marked spinal canal stenosis. See 11/7/2018 Medical Treatment Record – Government Facility. Regarding the Veteran’s OSA disability, the record showed a private positive nexus opinion by Dr. M.R., M.D., which cited medical literature in support of the opinion. However, the medical literature cited in the opinion are not of record to be evaluated. As such, the Board lacks the support documentation to fully evaluate this opinion. See 3/8/2021 Correspondence. On remand, the Board advises, to aid in substantiating the claim, the Veteran and his representative to submit the full text of the supporting articles. The AOJ did not obtain VA examinations regarding whether the Veteran’s OSA and low back disabilities were due to his active service. As such, on remand, the RO is to schedule VA examinations to determine the nature and etiology of the Veteran’s sleep disorder, to include OSA, and low back disability and address any relationship to service. 4. A TDIU. With respect to a TDIU, the Board finds that this matter is inextricably intertwined with his newly granted claim for service connection for an acquired psychiatric disability and the initial rating(s) to be assigned. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact’ upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of TDIU is deferred. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran’s outstanding records from appropriate repositories, to include record of disciplinary actions. All records and/or responses received should be associated with the claims file. 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 the records. 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). Additionally, advise the Veteran and his representative to submit the full text of the supporting articles concerning the June 2020 sleep apnea evidence from Dr. M.R. 2. After completion of step # 1, return the claims file to the reviewing clinician who authored the June 2017 headache disability opinion. A copy of this Remand request is to be provided. After a review of the claims file, the reviewing clinician must address: (a.) Whether it is at least as likely as not (probability of 50 percent or more), that the current Veteran’s migraine disability, in whole or part, had their onset in service. (b.) Whether it is at least as likely as not that the current Veteran’s migraine disability was caused by (proximately due to) the Veteran’s service-connected tinnitus. (c.) Whether it is at least as likely as not that the current Veteran’s migraine disability has been aggravated (i.e., worsened beyond the normal progression of that disease) by the Veteran’s service-connected tinnitus. **In doing so, please address the Veteran’s contentions that his migraine disability is due to his service-connected tinnitus. Additionally, please address the Veteran’s contentions that his disability has worsened and that he experiences daily headaches when he hears ringing in his ears. See 3/8/2021 Court Documents – General, at pages 21.** If the June 2017 reviewing clinician is no longer available, then the entire claims file is to be forwarded to another examiner of at least equal qualifications to obtain the requested opinion. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of step #1, schedule the Veteran for an appropriate VA musculoskeletal examination to determine the nature and etiology of the Veteran’s low back disability. The clinician is to review the virtual file, including a copy of this Remand. After review of the claims file, the examiner is to specifically address: Whether it is at least as likely as not that the Veteran’s current low back disability is related to active service. **For the purpose of formulating the above opinion, the examiner is to consider the Veteran’s competent lay statements that he hurt his back in-service due to manual labor and carrying heavy objects as part of his military occupancy specialty of heavy equipment operator. See 3/8/2021 Court Documents – General, at pages 19 and 20.** The examiner is to state whether a nexus between the Veteran’s low back disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. A full credibility determination will be made at a later date, if needed, after additional evidence has been added to the claims file.).** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completion of step #1, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s sleep disorder, to include OSA. The clinician is to review the virtual file, including a copy of this Remand. After review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not that the Veteran’s current sleep disorder, to include OSA is related to active service. (b.) Whether it is at least as likely as not that the current sleep disorder, to include OSA was caused by (proximately due to) the Veteran’s service-connected tinnitus or the now service-connected acquired psychiatric disorder. (c.) Whether it is at least as likely as not that the current sleep disorder, to include OSA has been aggravated by the Veteran’s service-connected tinnitus or the now service-connected acquired psychiatric disorder. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, Associate 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.