Citation Nr: 21030083 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-05 670 DATE: May 17, 2021 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disability is reopened. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. The claim for service connection for a bilateral hearing loss disability is dismissed. The claim for a rating in excess of 10 percent for tinnitus is dismissed. REMANDED Service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. An unappealed March 2009 rating decision declined to reopen a claim for service connection for an acquired psychiatric disability. 2. The evidence received since the March 2009 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability. 3. The Veteran has an acquired psychiatric disability, to include PTSD, that is related to in-service miliary sexual trauma (MST). 4. During his October 2020 hearing before the undersigned, and prior to the promulgation of a decision in the appeal, the Veteran requested the withdrawal of his appeal of the claim for service connection for a bilateral hearing loss disability. 5. During his October 2020 hearing before the undersigned, and prior to the promulgation of a decision in the appeal, the Veteran requested the withdrawal of his appeal of the claim for a rating in excess of 10 percent for tinnitus. CONCLUSIONS OF LAW 1. The March 2009 rating decision declining to reopen the claim for service connection for service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim for service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 3. The criteria for service connection for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a). 4. The criteria for withdrawal of the claim for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim for a rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to March 1979. This matter comes before the Board on appeal from three rating decisions of the Agency of Original Jurisdiction (AOJ). A December 2014 rating decision reopened and denied the claim for service connection for an acquired psychiatric disability. A December 2015 rating decision denied service connection for a bilateral hearing loss disability and granted service connection for tinnitus with a 10 percent rating. A December 2016 rating decision denied service connection for a TBI. The Veteran participated in a hearing before the undersigned in October 2020, and a transcript of this hearing has been associated with the record. A claim for service connection for a particular psychiatric disability is not limited only to that particular diagnosis, but it is instead encompasses any mental disability that is reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will has recharacterized the issue on appeal accordingly. New and Material Evidence Decisions of the AOJ and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). A July 1997 rating decision last denied the claim for service connection for an acquired psychiatric disability, finding that the record did not show either an in-service incident or a connection between such incident and a current psychiatric disability. A March 2009 rating decision found that the Veteran had not submitted new and material evidence sufficient to reopen the claim. The Veteran was notified of the decision and of his appellate rights, but he did not appeal the March 2009 rating decision, and no pertinent evidence was received within one year of March 2009 decision. Therefore, the March 2009 rating decision is final. Since the March 2009 decision, evidence has been added to the record relating both to an in-service incident and to a connection between such incident and a current psychiatric disability. For example, in January 2020, a clinician stated that the Veteran experienced an in-service military sexual trauma that led him to develop PTSD. This evidence relates to an unestablished fact necessary to substantiate the claim, and the claim for service connection for an acquired psychiatric disability is reopened. Service Connection The Veteran contends that he has an acquired psychiatric disability, to include PTSD, as the result of an in-service military sexual trauma (MST). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). When a PTSD claim is based on an in-service personal assault, including MST, the evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence may include records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Behavior changes following the claimed assault may constitute credible evidence of the in-service stressor. Examples of such behavioral changes include a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. Turning to the facts in this case, during his October 2020 hearing before the undersigned, the Veteran offered a harrowing account of experiencing repeated incidents of in-service MST in 1977. While the Veteran's service records do not document such assaults, they show that he was the subject of a number of disciplinary proceedings throughout 1978. In a December 1978 Report of Medical History conducted at his separation from service, the Veteran reported that he had experienced "nervous trouble". As a result of his in-service disciplinary infractions, the Veteran was discharged from service under honorable conditions in March 1979. An examiner diagnosed the Veteran with PTSD in December 2014. In January 2020, a VA clinician specializing in MST found, following a review of the Veteran's service treatment records and post-service treatment records, that it was more than likely that the Veteran's PTSD related to his claimed in-service MST. The clinician explained that the Veteran's in-service disciplinary infractions showed the "immediate impact on [the Veteran's] physical and mental well-being" following the MST. The clinician indicated that the Veteran's shame following these assaults prevented him from disclosing the MST to either in-service treatment providers or his chain of command. The clinician further found the Veteran's extensive post-service mental health history to be consistent with the occurrence of the Veteran's claimed MST. The clinician concluded that the Veteran presented "one of the worst cases of [MST] that [the clinician had] encountered". Turning to a review of this evidence, the Veteran has been diagnosed with PTSD. While the Veteran's service records do not document the claimed MST, the Board places great probative weight on the January 2020 opinion that the Veteran's in-service disciplinary infractions constitute a behavioral change consistent with the claimed MST. The Board finds that such behavioral changes constitute credible supporting evidence that the claimed MST indeed occurred. The January 2020 clinician otherwise linked the Veteran's PTSD to his in-service MST. With a current disability, an in-service stressor, and a link between such stressor and the Veteran's service, service connection for an acquired psychiatric disability, to include PTSD, is granted. Withdrawn Claims The Board may dismiss any appeal that 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. An oral withdrawal made at a Board hearing must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018) adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). During his October 2020 hearing before the undersigned, and after identifying him by his name and claims file number, the Veteran stated that he wished to withdraw his claims for service connection for a bilateral hearing loss disability and a rating in excess of 10 percent for tinnitus. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal of the appeals. The Veteran's full understanding of the consequences is shown as the Veteran withdrew the issues after consultation with his attorney. The requirements of 38 C.F.R. § 19.55 as well as Acree are shown to have been met. Thus, as the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal of the claims for service connection for a bilateral hearing loss disability and a rating in excess of 10 percent for tinnitus, and these issues are dismissed. REASONS FOR REMAND The Board must remand the Veteran's claim for service connection for a TBI in order to provide him with a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical evidence, for example in December 2016, suggests that the Veteran has indeed been diagnosed with a TBI. The Veteran claims that such TBI is the result of an in-service incident, including either a motor vehicle accident or the in-service MSTs that the Board has found to have indeed occurred. The Veteran has not yet been afforded a VA examination addressing the nature and etiology of his TBI, and the AOJ should arrange for the Veteran to receive such an examination. These matters are REMANDED for the following action: Schedule the Veteran for an examination to address the nature and etiology of his claimed TBI. After reviewing the claims file, conducting any necessary testing, and considering the Veteran's contentions, the examiner should address whether it is at least as likely as not (that is, a probability of 50 percent or greater), that the Veteran's TBI had its onset in service or is otherwise etiologically related to active service, to include as the result of a motor vehicle accident or to in-service assaults, to include MSTs. When rendering this opinion, the examiner should assume that the Veteran indeed experienced assaults, including MSTs, during service. The examiner should further assume that the Veteran is competent to describe experiencing an in-service MVA. The lack of documentation of such MVA is not itself sufficient justification for a negative response to the requested opinion. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.