Citation Nr: 21036332 Decision Date: 06/14/21 Archive Date: 06/14/21 DOCKET NO. 18-15 689 DATE: June 14, 2021 ORDER The claim of entitlement to service connection for a right knee disability is dismissed. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a left ankle disability, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. At the Veteran's January 2021 Board of Veterans' Appeals (Board) hearing, the Veteran requested to withdraw his appeal as to the issue of entitlement to service connection for a right knee disability. 2. In a May 2014 rating decision, the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus were denied on the merits; the Veteran did not appeal this decision. 3. Additional evidence received since the May 2014 rating decision denying entitlement to service connection for bilateral hearing loss and tinnitus is new, relates to unestablished facts necessary to support the claims, and raises a reasonable possibility of substantiating the claims. 4. The probative evidence of record is at least in equipoise concerning whether the Veteran's tinnitus had its onset in or is otherwise related to the Veteran's active duty service. 5. An acquired psychiatric disability was not present during the Veteran's active service; a psychosis did not manifest to a compensable degree within one year of separation; and the most probative evidence establishes that the Veteran's current psychiatric disability is not causally related to his active service or any incident therein, to include as secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for a right knee disability by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The May 2014 rating decision that denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1979 to July 1983. This matter comes before the Board on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) regional office (RO) which declined to reopen the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, and denied his claims of entitlement to service connection for a right knee disability, bipolar disorder, anxiety, and insomnia. The Veteran timely appealed. Although the Veteran specifically filed claims for entitlement to service connection for bipolar disorder, anxiety, and insomnia, the appeal has been expanded to include all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board notes that additional records have been added to the claims file since the issuance of the statement of the case in March 2018, including VA examination reports and VA treatment records. However, as such evidence is not relevant to the issues on appeal, a remand is not warranted for RO review based on the receipt of additional evidence. See 38 C.F.R. § 20.1304 (c). Thus, the Board may proceed to adjudicate the claims. In January 2021, the Veteran testified before the undersigned Veterans Law Judge in a virtual hearing. A copy of the hearing transcript is of record. 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. 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. 1. The claim of entitlement to service connection for a right knee disability is dismissed. In the present case, during the January 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of service connection for a right knee disability. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to the appeal. The Veteran's full understanding of the consequences is shown based on the fact that prior to the hearing, the consequences of withdrawal of the claim were fully discussed by the undersigned and the Veteran's representative. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 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 entitlement to service connection for a right knee disability and it is dismissed. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 5108. The Board must determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "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 requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold, to be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In adjudicating a claim for benefits, VA must consider all pertinent lay and medical evidence of record. 38 U.S.C. §§ 1154 (a), § 5107; 38 C.F.R. § 3.303. 2. New and material evidence having been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. The Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus were denied on the merits in a May 2014 rating decision. The Veteran did not appeal the decision. Moreover, new and material evidence was not received within one year of the May 2014 rating decision. See 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claims. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (a); 20.1103. New and material evidence has been received regarding both issues in the form of private audiological treatment records and the Veteran's sworn testimony at the January 2021 hearing concerning the in-service onset of both conditions. Accordingly, this evidence relates to unestablished facts necessary to reopen the claims and raises a reasonable possibility of establishing service connection. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a "low threshold"). Therefore, reopening the claims is warranted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, certain diseases, such as tinnitus and psychosis are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113;38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for tinnitus is granted. The Veteran maintains entitlement to service connection for tinnitus. He avers that this disability began while he was operating tanks during service and was exposed to hazardous noise. The Board finds that the preponderance of the evidence weighs in favor of a grant of service connection for tinnitus. First, the Board finds that there is competent, credible evidence of a current disability. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As the Veteran has competently, credibly, and consistently reported experiencing tinnitus since service, the first element of service connection is met. Second, the Board finds that there is competent, credible evidence of an in-service event, disease, or injury. The Veteran has reported in-service noise exposure. The Veteran's military personnel records show that he was an armored crewman during his active duty service. Accordingly, the Board finds that his reports regarding in-service noise exposure and tinnitus are consistent with the circumstances of his service. 38 U.S.C. § 1154 (b); see Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, the second element of service connection is met. At issue is whether there is an etiological relationship between the Veteran's tinnitus and his in-service noise exposure. At a May 2014 VA examination, the Veteran presented with a history of reported military noise exposure from tanks and mortars. After a thorough examination of the Veteran, the examining audiologist opined that the Veteran's tinnitus was not caused by, or a result of, military noise exposure. In pertinent part, the rationale was that the Veteran's hearing was normal at induction and separation. To the extent that the VA audiologist's opinion is based on the lack of hearing loss during service, including at separation, the Board finds that it is flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss or tinnitus. Ledford v. Derwinski, 3 Vet. App. 87 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Due to this deficiency in the May 2014 medical opinion, the Board finds that it is of no probative value. Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide on the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. See 38 C.F.R. § 3.304 (c). As previously discussed, the Board finds that in-service noise exposure has been established. The Board finds the Veteran's lay testimony to be of particular importance for this claim, as the determination of whether service connection is warranted for tinnitus turns almost entirely on his lay testimony. In particular, the Board finds the Veteran competent to report the onset and continuation of ringing in his ears. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board finds that, given the Veteran's credible lay statements regarding the onset and progression of his tinnitus disability, the information regarding his service and noise exposure, and the lack of evidence regarding intervening noise exposure, the evidence is at least in relative equipoise on this matter. As such service connection for tinnitus is granted. 4. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a left ankle disability, is denied. The Veteran maintains entitlement to service connection for an acquired psychiatric disability. He avers that he developed this disability during active duty service following an incident in which he injured his left ankle and was left unable to fully participate as a soldier. The Veteran maintains that in addition to becoming depressed and anxious, he also self-medicated with drugs and alcohol. The Board finds that the preponderance of the evidence weighs against a grant of service connection for an acquired psychiatric disability on a direct, secondary, or presumptive basis. Concerning direct service connection, the Board first finds that there is competent, credible evidence of a current disability. The Veteran has been variously diagnosed with unspecified bipolar and related disorder, stimulant use disorder (cocaine), major depression, and anxiety. Following a review of the claims file, including all prior diagnoses, and an interview and clinical evaluation of the Veteran, the March 2016 VA examiner determined that the Veteran's medical history and symptomatology most specifically comported with a diagnosis of unspecified bipolar and related disorder and stimulant use disorder (cocaine) in sustained remission. Second, while the record indicates that the Veteran did in fact injure his left ankle during his active duty service, there is no objective evidence of the development of an accompanying psychiatric disability while in service. The Veteran's active duty service treatment records are silent for complaint, treatment, or diagnosis of a psychiatric disability; in fact, he denied depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort on a periodic Army National Guard examination in April 1987 within four years of separation. As the second element is not satisfied, the third element is moot regarding a direct relationship to an in-service disease, injury, or event. Regarding secondary service connection, as described above there is competent, credible of a current disability. Further, the record reflects that the Veteran is service-connected for a left ankle disability. Concerning a nexus between the Veteran's acquired psychiatric disability and his service-connected left ankle, the only competent medical evidence weighs against the Veteran's service connection claim. In February 2018, the same VA examiner from March 2016 reviewed the claims file again and found that it was less likely as not that the Veteran's bipolar disorder was proximately due to or the result of his service-connected left ankle disability. He also found that the Veteran's bipolar disorder was less likely than not aggravated beyond its natural progression by his service-connected left ankle disability. The VA examiner explained that he reviewed the Veteran's records and literature on bipolar disorder in preparation of his opinion. He noted that bipolar disorder is a biological disorder less likely than not influenced by the medical conditions of the Veteran, as there was no evidence to support a finding that his bipolar disorder waxed or wanted correspondingly to reports of flares in symptoms of his left ankle disability. The VA examiner found that the Veteran's bipolar disorder varied in intensity directly only to his compliance or non-compliance with mood stabilizing medications. He concluded that, to a reasonable degree of medical certainty, there was no way his medical condition could be tied to or influenced by his service-connected medical issues. The Board finds that this opinion is probative as it is factually accurate, fully articulated, and contains sound reasoning for its conclusions based on the medical professional's knowledge and expertise and additional research on the condition at issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board has considered the Veteran's contentions that a relationship exists between his current acquired psychiatric disability and his in-service experiences and/or to his service-connected left ankle disability. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to a relationship between his current disability and service and symptoms is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). To the extent that the Veteran's statements are competent, the Board finds the specific, reasoned opinion of the February 2018 VA examiner to of be greater probative weight than the Veteran's more general lay assertions. The Board also notes that the Veteran has been diagnosed as having stimulant use disorder and that his medical records document past drug and alcohol use. To the extent that the Veteran may be seeking service connection for a psychiatric disability due to or manifested by drug and alcohol abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. See also 38 U.S.C. § 105 (a); 38 C.F.R. §§ 3.1 (m), 3.301(d) (providing that an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs). Thus, service connection for stimulant use disorder is not warranted. A grant of presumptive service connection for a psychosis is not warranted, as the first objective documentation of psychiatric symptoms was in 2015, more than 30 years after separation. Further, there is no competent and credible evidence of an in-service manifestation to allow for service connection based on a continuity of symptomatology. As indicated above, the Veteran's service treatment records are silent for complaint, treatment, or diagnosis of psychiatric symptomatology; thus, such a disability was not noted in service and continuity of symptomatology is inapplicable. For the foregoing reasons, the preponderance of the evidence of record is against a finding that the Veteran's acquired psychiatric disability was caused by or related to the Veteran's period of active service. The benefit of the doubt doctrine is therefore not for application and the claim for service connection for this disability must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran maintains entitlement to service connection for bilateral hearing loss. He avers that this disability began while he was operating tanks during service and was exposed to hazardous noise. The Veteran's claim regarding in-service noise exposure is considered credible as it is consistent with the circumstances of his service as an armored crewman. However, when he was provided a VA examination in May 2014, he did not meet the requirements for bilateral hearing loss as enumerated in 38 C.F.R. § 3.385. In April 2021, the Veteran submitted a letter from his private audiologist in which the audiologist indicated that there was "an onset of hearing loss." Thus, the Board finds that a remand is warranted for a current VA examination and medical opinion. The matters are REMANDED for the following action: Schedule the Veteran for a new VA audiological examination. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss disability is at least as likely as not related to service. In providing the rationale for the opinion, the examiner should explain why the Veteran's hearing loss disability is or is not a delayed residual of his established in-service noise exposure. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.