Citation Nr: 21032286 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-11 040A DATE: May 26, 2021 ORDER Entitlement to service connection for throat disability is dismissed. Entitlement to service connection for memory loss is dismissed. Entitlement to service connection for muscle weakness is dismissed. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for vasovagal syncope with atypical chest pains and palpations (previously listed as syncope). The appeal is granted to this extent only. REMANDED Entitlement to service connection for posttraumatic stress disorder is remanded. Entitlement to service connection for unspecified anxiety disorder to include unspecified depressive disorder is remanded. Entitlement to service connection for vasovagal syncope with atypical chest pains and palpations (previously listed as syncope) is remanded. FINDINGS OF FACT 1. In August 2020, prior to the promulgation of a decision in the appeal, the Veteran's representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for a throat disability. 2. In August 2020, prior to the promulgation of a decision in the appeal, the Veteran's representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for memory loss. 3. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran's representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for muscle weakness. 4. By a November 2009 rating decision, the Veteran's claim of entitlement to service connection for syncope was denied. 5. Additional evidence is received which is not cumulative or redundant of the evidence of record at the time of the November 2009 rating decision and relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for syncope. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a throat disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to service connection for memory loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to service connection for muscle weakness are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The November 2009 rating decision denying service connection for syncope is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for syncope, and the claim is reopened. 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 2002 to November 2002; and January 2003 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Withdrawal 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 (2020). 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 (2020). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, at an August 2020 Board hearing, the Veteran via his attorney withdrew his appeals as to entitlement to service connection for throat disability, memory loss, and muscle weakness. As a result, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction over these issues, and the appeals are dismissed with respect to said issues. New and Material A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for vasovagal syncope with atypical chest pains and palpations (previously listed as syncope). The appeal is granted to this extent only. The Veteran's claim of entitlement to service connection for syncope was denied by the RO in a November 2009 rating decision. The decision became final. In the November 2009 rating decision, the Veteran's claim was denied based on the finding that the there was no treatment or diagnosis of the condition while in service. At the time of the November 2009 rating decision, the pertinent evidence of record included the Veteran's service treatment records, and VA and private treatment records. The evidence received since the November 2009 rating decision includes additional treatment records, a February 2014 VA examination and opinion, and testimony at a Board hearing. At the hearing, the Veteran testified that he has had syncopal events ever since his service in Afghanistan. The credibility of the evidence is assumed to be true for purposes of determining if new and material evidence has been received. This evidence is new, as it was not previous of record; and it is material as it goes to substantiating whether the Veteran has a current disability of syncope or treatment while he was inservice. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder is remanded. The May 2014 report of VA PTSD examination indicated that the Veteran did not have PTSD as a result of his two reported stressors an interaction with a civilian who attempted to take his weapon and fear of stepping on land mines. The examiner did link a mental disorder to the Veteran's reports of mental health symptoms to his reported syncope. Since this time, additional possible stressors have been reported that are potentially capable of verification. Associated with the claims file is a report of a September 2020 psychology disability examination that opines the Veteran has a DSM V diagnosis of PTSD. The PTSD diagnosis is based, in part, on reported stressors of including being routinely exposed to combat and involved with combat, witnessing and/or participating in violent deaths, being subjected to mortar attacks. These alleges stressors are reported here for the first time. Attempts must be made to verify their occurrence. If stressors are confirmed, another examination is required to determine if the Veteran has PTSD as a result of a confirmed stressor or stressors. 2. Entitlement to service connection for unspecified anxiety disorder to include unspecified depressive disorder is remanded. The examiner who conducted the May 2014 VA examination found that the Veteran had a mental disorder that may be linked to his syncope episodes. As the claim of entitlement to service connection for syncope is being remanded, the Board finds this claim is inextricably intertwined with that claim. As such, it too must be remanded. 3. Entitlement to service connection for vasovagal syncope with atypical chest pains and palpations (previously listed as syncope) is remanded. Service connection may be granted for a current disability resulting from an injury or disease incurred in, or aggravated by, active military service. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in, or aggravated in, line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in, or aggravated in, line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. The fact that a claimant has established status as a veteran for purposes of other periods of service does not obviate the need to establish that he or she is also a veteran for purposes of the period of ACDUTRA, if the claim for benefits is premised on that period of ACDUTRA. Similarly, in order for the claimant to achieve "veteran" status and be eligible for service connection for disability relating to inactive service, he or she must have been disabled from an injury (but not a disease) incurred or aggravated during INACDUTRA. There is evidence of record which indicates that the Veteran experienced syncope while in formation during National Guard service in March 2005. It is not apparent if this event occurred during a period of ACDUTRA or INACDUTRA. Verification of the Veteran's periods of military service to include active duty, ACDUTRA and INACDUTRA is required. A February 2014 VA examination including the finding that the syncope condition is not related to service, unless there is some PTSD or traumatic experience that initiated these events, that the VA examiner had not obtained information about. As set out above, additional potential stressors have been identified. If any stressor or stressors are confirmed, an opinion should be obtained to determine if the confirmed stressor is etiologically linked to the syncope condition. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA, and any outstanding private, medical records and associate them with the claims file. 3. Send the Veteran a letter (i.e. stressor verification form) requesting any pertinent information to assist VA in attempting to verify reported in-service stressors of being routinely exposed to combat and involved with combat, witnessing and/or participating in violent deaths, being subjected to mortar attacks and any other stressful events from active duty. Following receipt of any response, including lay statements of record and review of the testimony provided, appropriate action should be taken to attempt to verify any reported stressors that are capable of verification to include contacting JSRRC and any other appropriate sources. 4. If the search for corroborating records leads to negative results, the RO must notify the Veteran and his representative of this fact, explaining the efforts taken, describing further action, if any, to be taken, and affording them the opportunity to respond. The RO should also follow up on any additional action suggested by each appropriate source contacted. 5. Undertake appropriate development to verify all periods of the Veteran's INACDUTRA and/or ACDUTRA, to include any Army National Guard service. 6. If a stressor or stressors are verified, schedule the Veteran for an examination by a suitably qualified health care professional to determine whether the Veteran has an acquired psychiatric disorder to include PTSD which is linked to the verified stressor or stressors. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinion. The claims file must be reviewed by the examiner. The examiner must address the following: (a.) Whether it is at least as likely as not that the Veteran has a diagnosis of PTSD conforms with DSM-V criteria based on a verified stressor or stressors. (b.) Whether it is at least as likely as not that the Veteran has any other mental disorder that conforms with DSM-V criteria and is based on an in-service event or events including the verified stressor or stressors. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge 7. Obtain an addendum opinion by a suitably qualified health care professional to determine the nature and etiology of the Veteran's reported syncope condition. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinion. The claims file must be reviewed by the examiner. The examiner must address the following (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's syncope condition resulted from active duty service? (b.) Is the syncope documented in the Veteran's service treatment records the result of disease or injury? (c.) If the response to (a) is no, is the syncope condition proximately due to or aggravated beyond its natural progression by a diagnosed acquired psychiatric condition? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.