Citation Nr: 21024643 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-64 407 DATE: April 23, 2021 ORDER Service connection for tinnitus is dismissed. Service connection for sciatica as secondary to lumbosacral strain is denied. New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood, is reopened. REMANDED Service connection for a psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, is remanded. FINDINGS OF FACT 1. Prior to a promulgation of a decision in this case, the Veteran withdrew her claim of service connection for tinnitus. 2. The preponderance of the evidence of record is against finding that the Veteran has had sciatica at any time during or approximate to the pendency of the claim. 3. Service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, was last denied in an unappealed April 2010 rating decision; evidence received since relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for sciatica are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for reopening the claim of service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to July 1997. These matters are before the Board of Veterans’ Appeals (Board) on appeal from June 2016 and August 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge in February 2021. A transcript is of record. 1. Service connection for tinnitus 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 Veteran or by his or her authorized representative. Id. Here, at the February 2021 Board hearing, the Veteran withdrew her appeal on the claim of service connection for tinnitus. See Board hearing transcript at 2. The Veteran expressed on the record that she understood the consequences of the withdrawal. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn the appeal with respect to the issue and there remains no allegations of error of fact or law for appellate consideration with respect to the issue. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the issue and dismissal is warranted. 2. Service connection for sciatica as secondary to lumbosacral strain is denied. The Veteran contends that she has sciatica related to her service-connected lumbar strain. At the hearing before the undersigned, she testified “[I]'m feeling the pain in my back, and it runs down to my leg, back of my both legs.” The question for the Board is whether the Veteran has a current diagnosis of sciatica that began during service or is at least as likely as not related to an in-service injury, event, or disease, or to her service-connected lumbar strain. The Board concludes that the Veteran does not have a current diagnosis of sciatica and has not had one at any time during the pendency of the appeal or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At the May 2016 VA back examination, the Veteran reported left lower extremity sciatica with numbness from the buttocks to the toes. Upon examination, the examiner noted that there was no radiculopathy; the sensory exam and reflexes were normal; and the straight leg test was negative. The examiner noted that there were no other neurologic abnormalities. The examiner provided the following diagnosis: “Lumbar strain. No radiculopathy. No functional limitations. X[-]ray negative.” A May 2016 VA peripheral nerves examination report reflects the Veteran did not have any peripheral nerve condition or peripheral neuropathy following a clinical evaluation. The reflexes and sensory exam were normal. The examiner noted that the Veteran’s sciatic nerves were normal. The examiner noted that there was no functional impairment due to the peripheral nerve conditions, and that the Veteran’s peripheral nerve condition and/or peripheral neuropathy did not impact her ability to work. At the December 2017 VA examination for back conditions, the Veteran reported sharp, stinging, numbness sensation that moved down her thigh to her lower leg and feet. Upon examination, the examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy; the sensory exam was normal; the straight leg raise test was negative; and there were no other neurological abnormalities. The examiner indicated no functional limitations were present. The Veteran’s VA and private treatment records are also silent for a diagnosis of sciatica. While there is a complaint of numbness in her feet in a January 2009 VA treatment note, the records are negative for any assessment or diagnosis of sciatica. The Board is mindful of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. However, in this case, there is no showing of impaired earning capacity due to any symptoms of pain in the lower extremities that she believes is due to sciatica. VA examiners have also indicated no functional limitations are present. While the Veteran believes she has a current diagnosis of sciatica, she is not competent to provide such a diagnosis. The issue is medically complex, as it requires medical expertise and clinical diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent opinions provided by the VA examiners who have the requisite medical expertise and who conducted clinical evaluations. As there is no evidence of current sciatica of the lower left extremity for which service connection may be granted, service connection is not warranted. Brammer v. Brown, 3 Vet. App. 223 (1992). 3. New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, is reopened. A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO originally denied service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, in an April 2010 rating decision. Notice of the RO rating decision was issued in April 24, 2010; the Veteran did not file a notice of disagreement with the rating decision. Furthermore, new and material evidence was not received within one year of the issuance of notice of the decision. Therefore, the April 2010 decision denying service connection became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran sought to reopen the claim in January 2016. In an August 2016 rating decision, the RO reopened the claim, but denied entitlement to service connection on the merits due to lack of a causal nexus. Relevant evidence received since the April 2010 rating decision includes a VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault, a July 2016 VA psychiatric examination report discussing the nature and etiology of current psychiatric disorders, Social Security Administration records that show current diagnoses of PTSD, VA and private treatment records, and a transcript of Board hearing testimony. Some of the evidence received since the previous final denial is new, as it was not previously considered by VA and is not cumulative or redundant. The VA treatment records showing a diagnoses of PTSD related to MST are material because they relate to current diagnosis and causal nexus. Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. The July 2016 VA examination report and testimony of the Veteran is also material because it relates to causal nexus. When considered along with the evidence previously of record, the new evidence raises a possibility of substantiating the claim. Accordingly, new and material evidence has been received, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Service connection for a psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, is remanded. The Veteran contends that she has a psychiatric disorder related to service, and in particular, MST-related events. As explained below, additional development is needed prior to final adjudication of the appeal. The Veteran was afforded a VA examination in July 2016. Following record review and an evaluation, the examiner determined that the Veteran did not meet full DSM-5 criteria for a diagnosis of PTSD (to include due to MST) or meet the DSM-5 criteria for any other mental disorder. The examiner noted that the diagnosis that appears most often in the record is adjustment disorder, but at this time, there is no evidence to support that the Veteran is experiencing clinically significant symptoms which meet criteria for any mental health disorder. In an August 2016 addendum opinion, the examiner indicated that the Veteran did in fact experience an in-service stressor in the form of MST, but the MST did not result in any current PTSD symptoms. The examiner indicated that other diagnoses of PTSD found in the file were rendered in error, in her opinion. The examiner explained that although treatment records include a diagnosis of PTSD based on MST, there was contradictory information and self-report of symptoms noted in the Veteran’s treatment records. The examiner did not fully elaborate on what the specific contrary information was. Since the 2016 VA examination report, a significant amount of medical records was added to the file. Several VA records show current mental health diagnoses according to the DSM-5, and appear to be related to the service MST-related events. Of note, SSA records also show the Veteran receives disability benefits based on a secondary diagnosis of ‘anxiety-related disorder.’ An SSA psychologist (Dr. R.N.) who interviewed the Veteran, provided a diagnosis of PTSD that appears to have been based on the Veteran’s reported history of the events she experienced during basic training. Thus, an addendum opinion would be helpful. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The claims file should be reviewed by the examiner. After reviewing the record, the examiner is asked to answer the following questions: a) Identify all current psychiatric disorders. If the examiner determines that a prior diagnosis that existed during the pendency of the appeal is no longer applicable, the examiner is to attempt to reconcile that current finding with the evidence of record. b) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the in-service MST-related stressor event. If PTSD is not diagnosed, the examiner must clearly explain why this is so in light of the various PTSD diagnoses shown in the record. c) If the Veteran is diagnosed with a personality disorder and PTSD, then the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. d) The examiner must opine whether the evidence of record, including the Veteran’s lay statements and her service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. e) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder at least as likely as not began in service or is otherwise related to service, to include the reported MST-related events that occurred during basic training. (Continued on the next page)   A complete rationale must be provided for all opinions offered. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi, 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.