Citation Nr: 21031662 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-19 693 DATE: May 24, 2021 ORDER The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss has been withdrawn. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a depressive disorder, and a substance-related disorder, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. REFERRED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was raised in a March 2021 statement and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. On March 30, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issue of service connection for hearing loss is requested. 2. The weight of evidence shows that the tinnitus began during the Veteran's first period of active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of whether new and material evidence has been submitted to reopen a claim of service connection for hearing loss by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1987 to September 1991 and from September 1992 to April 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In April 2014, the Veteran testified at hearing held at the RO before a decision review officer, and a transcript of that hearing has been associated with the electronic claims file. In January 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. At the January 2021 hearing, the undersigned Veterans Law Judge agreed to hold the record open for 90 days. January 2021 hearing transcript, page 2. That 90-day period has expired. 38 C.F.R. § 20.605 (2020). In an April 1995 rating decision, a RO denied service connection for hearing loss. In May 1995, the Veteran was notified of that denial and given his appellate rights. In a December 2000 rating decision, a RO denied service connection for hearing loss. It is unclear from a December 2000 notice letter whether the Veteran was provided notice of that rating decision. In the June 2012 rating decision, the RO y reopened the claim of entitlement to service connection for hearing loss. Although the RO reopened this claim, the Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen the previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened, and there is no harm to a veteran's ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In the June 2012 rating decision, the RO denied service connection for PTSD. VA treatment records reveal a diagnosis of a depressive disorder. A December 2010 VA examination report reflects diagnoses of polysubstance dependence in reported full sustained remission, nicotine dependence in reported full sustained remission, alcohol abuse in reported early partial remission, and antisocial personality traits. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim on appeal includes PTSD as well as all other acquired psychiatric disorders. In March 2021, the Veteran submitted medical evidence relating his sleep apnea to PTSD. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Pursuant to Schroeder, the Board will consider whether sleep apnea is secondary to other psychiatric disorders. Withdrawn Issue 1. Whether new and material evidence has been submitted to reopen a claim of service connection for hearing loss 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. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal of the issue regarding entitlement to service connection for hearing loss and 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 the issue of whether new and material evidence has been submitted to reopen a claim of service connection for hearing loss and it is dismissed. Service Connection 2. Entitlement to service connection for tinnitus Governing law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, such as organic diseases of the nervous system that include tinnitus when there is evidence of acoustic trauma, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Analysis A December 2010 VA examination report reveals a diagnosis of tinnitus. Thus, there is a current diagnosis. Turning to Hickson elements (2) and (3), in-service disease or injury and nexus, respectively, the December 2010 VA examiner stated that he was unable to opine on whether the tinnitus was likely due to in-service acoustic trauma because the audiometric test results were unreliable and unsuitable for rating purposes. A November 1991 VA audiological examination report, however, reveals that the Veteran had periodic bilateral tinnitus that had been present for about three years. This examination was conducted two months after the Veteran's separation from his first period of active duty. The Board gives great weight to the November 1991 VA examination report. The weight of evidence shows that the tinnitus began during the Veteran's first period of active duty. Thus, Hickson elements (2) and (3), in-service disease or injury and nexus, are satisfied. In short, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for tinnitus. The benefit sought on appeal is accordingly allowed. REASONS FOR REMAND In a March 2021 statement, a private psychologist opined that the Veteran has PTSD and that the disorder is related to in-service stressors, events, and hardships of service. The private psychologist did not evaluate the Veteran and instead reviewed the medical records in the electronic claims file. In a November 2010 statement, the Veteran reported that he engaged in combat with the enemy while maneuvering into Iraq from January 25, 1991, to January 26, 1991. At the January 2021 hearing, the Veteran testified that he participated in Operation Just Cause in Panama. January 2021 hearing transcript, page 3. The Veteran's service personnel records reflect that he served in Saudi Arabia until only January 16, 1991, and that he did not serve in Panama during Operation Just Cause. The Board notes that the air operations in the Persian Gulf War did not start until January 17, 1991, and that main ground war did not start until February 1991. See en.m.wikipedia.org/wiki/Gulf_War. In light of the above, the Board finds that the Veteran's reporting of in-service stressors to not be credible. Nonetheless, a medical opinion is necessary to determine whether an acquired psychiatric disorder other than PTSD is related to his service in the Persian Gulf prior to the beginning of combat operations and the reporting of nervous trouble of any sort on the May 1991 separation examination. In a July 2017 VA Form 21-0788 (information regarding apportionment of beneficiary's award), the Veteran reported Social Security income. The RO should obtain any records from the Social Security Administration regarding the Veteran's claim for Social Security disability benefits. The RO should obtain any additional treatment records from the North Florida/South Georgia Veterans Health System from March 2017 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for any psychiatric disorder and sleep apnea and obtain any identified records. Obtain the Veteran's VA treatment records from the North Florida/South Georgia Veterans Health System for the period from March 2017 to the present. 2. Obtain the Veteran's federal records from the Social Security Administration pertaining to the Veteran's claim for disability benefits. Document all requests for information as well as all responses in the claims file. 3. After the development in 1 through 2 is completed, the RO should arrange for the Veteran's electronic claims file to be reviewed by an appropriate clinician for a medical opinion on the nature of any current acquired psychiatric disorder other than PTSD or a substance-related disorder. The Veteran should only be scheduled for another examination if the medical professional deems it necessary. The clinician should be advised that the Veteran only served in the Persian Gulf region until January 16, 1991, and that the combat in the Persian Gulf War did not start until January 17, 1991. If the medical evidence shows a diagnosis of a personality disorder and a current psychiatric disorder other than PTSD or a substance-related disorder, the clinician must opine whether the current psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. For any current psychiatric disorder other than PTSD and a substance-related disorder, the clinician must opine on whether it is at least as likely as not that the psychiatric disorder is related to an in-service injury, event, or disease during the Veteran's two periods of active duty, including service in the Persian Gulf region from September 1990 to January 16, 1991, in anticipation of combat and the in-service reporting of a history of nervous trouble of any sort at the May 1991 separation examination. 4. After the development in 1 through 3 is completed, the RO should undertake any necessary development on the claim of service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, as warranted by any additional evidence of record. 5. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.