Citation Nr: 21040344 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-30 089 DATE: July 3, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for bilateral tinnitus is dismissed. New and material evidence having been received, the Veteran's claim for entitlement to an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is reopened, and to that extent only, the appeal is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, is remanded. FINDINGS OF FACT 1. The appeal for a disability rating in excess of 10 percent for bilateral tinnitus has been withdrawn by the Veteran. 2. In an unappealed October 2015 rating decision, the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of entitlement to an acquired psychiatric disorder to include PTSD. 3. Evidence received after the October 2015 rating decision denying the Veteran's claim for entitlement to service connection for an acquired psychiatric disability is new and material as it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for a disability rating in excess of 10 percent for bilateral tinnitus by the appellant (or his or her authorized representative) are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Evidence received after the October 2015 rating decision denying the Veteran's claim for entitlement to service connection for an acquired psychiatric disability is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from September 1963 to September 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a VA AOJ November 2018 rating decision. In May 2021 the Veteran appeared before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to a disability rating in excess of 10 percent for bilateral tinnitus 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 appellant or by his or her authorized representative. 38 C.F.R. § 19.55. At his May 2021 Board hearing, the Veteran stated that he wished to withdraw his claim for a disability rating in excess of 10 percent for bilateral tinnitus. He indicated that he understood the consequence of his withdrawal. The Veteran's representative was at the hearing. As such, the Veteran has clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran's statement meets the criteria for withdrawal of the appeal of entitlement to an increased rating for service-connected bilateral tinnitus. 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 with respect to the above identified issue and therefore the Veteran's claim for entitlement to a disability rating in excess of 10 percent for bilateral tinnitus is dismissed. 2. Entitlement to Service Connection for an Acquired Psychiatric Disorder to include PTSD New and Material Evidence The Veteran's initial claim for entitlement to service connection for an acquired psychiatric disability was originally denied by the AOJ in an October 2015 rating decision. The Veteran did not properly appeal the decision in a timely manner, and the decision became final. A decision of a VA Regional Office (the AOJ in this case) becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence is defined as 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade, supra. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium). At the time of the October 2015 denial, the AOJ noted that while VA medical records showed that the Veteran had a diagnosis of PTSD, there was no evidence of an acquired psychiatric disorder in service; no evidence of combat; and because the Veteran failed to report for a scheduled VA examination, there was no link between a psychiatric diagnosis and service. Since that decision, additional treatment records in the Veteran's medical history that have been added continue to show a diagnosis of PTSD including a provisional diagnosis (see August 2018 VA CAPRI treatment record); a VA mental disorders (other than PTSD and eating disorders) examination report which noted a diagnosis of major depressive disorder only that was not related to the Veteran's military service; and the Veteran's recent Board testimony. The Board finds the Veteran's May 2021 Board hearing testimony to be both new and relevant as the Veteran provided additional detail regarding his claimed stressors related to his Vietnam service including the fear that he experienced. As this evidence was not before the AOJ in October 2015 it is, by definition, new. Furthermore, it is not redundant, and it addresses an unestablished fact necessary to prove the claim. With new and material evidence having been received, the Board finds that the claims for entitlement to service connection for entitlement to an acquired psychiatric disability, claimed as PTSD, is reopened. However, as indicated in greater detail below, the Board also finds that additional development of this issue is warranted before the Board may address the matter on the merits. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. The Veteran claims that his hearing loss warrants a compensable disability rating. The Veteran's last audiometric examination was in October 2018. At his March 2021 Board hearing the Veteran stated that his hearing has worsened since that time. Typically, the age of an examination is insufficient reason alone to require a remand. However, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Therefore, the Board finds that a more contemporaneous VA examination is required to provide a current assessment and evaluation of the Veteran's bilateral hearing loss. 38 C.F.R. §§ 3.326, 3.327 (2019). 2. Entitlement to service connection for a right ankle disability is remanded. The Veteran claims that he has a right ankle disability that is due to an in-service accident. At his March 2021 hearing, the Veteran claims that while he was deployed to the Republic of Vietnam in early 1967, he slipped on the deck of ship and broke his ankle. The Veteran claimed that he had to wear a cast for "three or four months." The Board notes that the Veteran's service treatment records (STRs) show no evidence of an injury to his right ankle, though there is an injury to his left ankle. However, it is possible the Veteran's complete STRs are not associated with the claims file. Furthermore, currently there is no medical evidence in the file that addresses the etiology of the claimed disability. At his Board hearing the Veteran, through his representative, noted that he has not been afforded a VA examination to determine the etiology of any right ankle disability. By definition, the Veteran has not been provided an adequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is necessary to assist the Veteran in developing his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to an acquired psychiatric disability, claimed as PTSD, is remanded. The Veteran claims that his PTSD is caused by his military service. Specifically, the Veteran recounted instances while deployed to Vietnam where the boats he was aboard were fired upon by enemy forces, as well as a time that his boat lost engine power and was forced to drift for hours until rescue. A September 2018 VA mental disorders examination noted that the Veteran did not have a diagnosis of PTSD. However, as noted above, there are notes in the Veteran's medical records indicating he had received treatment for PTSD. Additionally, the September 2018 failed to address the Veteran's contentions that his irritability, nightmares, and substances abuse conditions began while he was on active duty and have continued since, or to specifically address his reported stressors. While the Board regrets the additional delay, a remand is necessary to assist the Veteran in developing his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The AOJ should with the Veteran's assistance attempt to verify the Veteran's stressors and then afford the Veteran another VA mental disorders (to include PTSD) examination. The matters are REMANDED for the following action: 1. The AOJ should conduct the following development of the record: (a.) make reasonable efforts to obtain the Veteran's complete service treatment records. All attempts made to obtain the records must be documented in the claims file, and any documentation sent and received by the AOJ must be associated with the claims file. (b.) take appropriate action, with additional information from the Veteran, if necessary, to verify any claimed stressors reported by the Veteran in lay statements, testimony, and VA Forms 21-0781 of record that are capable of verification. 2. Once the above has been completed, afford the Veteran a VA audiometric examination to determine the severity of his bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the applicable VA rating criteria. 3. Once the directive set forth in paragraph number 1 above has been completed, afford the Veteran a VA examination by an appropriately qualified medical professional to determine the nature and etiology of a current right ankle disability. If the Veteran is found to have a current right ankle disability, the examiner must address whether it is as least as likely as not (50 percent chance or greater) that a right ankle disability is caused by, incurred in, or otherwise due to his active duty service. 4. Once the directive set forth in paragraph number 1 above has been completed, afford the Veteran a VA mental disorders (to include PTSD) examination by an appropriately qualified medical professional to determine the nature and etiology of any acquired psychiatric disorder to include PTSD. The examiner must address the Veteran's contentions that he has had nightmares since being deployed to Vietnam, that he began drinking heavily while on active duty, and the relevant notations in his medical treatment records indicating a diagnosis of PTSD. (a.) 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 a verified in-service stressor or the fear of in-service hostile military or terrorist activity. (b.) For all other psychiatric disorders diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, disease, or event as described the Veteran. 5. The examiner[s] must provide detailed rationale for the required opinions. If they cannot do so without resorting to mere speculation, they must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.