Citation Nr: 21042036 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-38 165 DATE: July 11, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, to include as due to alleged herbicide exposure is dismissed. New and material evidence having been received the Veteran's claim for entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and anxiety and nightmares and/or as due to herbicide exposure is remanded. Entitlement to service connection for vertigo, to include as secondary to service-connected PTSD and anxiety and nightmares and/or as due to alleged herbicide exposure is remanded. Entitlement to service connection for sleep apnea to include as secondary to service-connected PTSD and anxiety and nightmares and/or due to alleged herbicide exposure is remanded. FINDINGS OF FACT 1. In a February 2021 statement, prior to the promulgation of a decision in the matter, the Veteran withdrew his appeal for entitlement to service connection for diabetes mellitus, type II to include as due to alleged herbicide exposure. 2. In a final decision issued in August 2008, the RO denied the Veteran's claim for entitlement to service connection for tinnitus. 3. Evidence added to the record since the last final denial in August 2008 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. 4. The evidence is at least in relative equipoise as to whether the Veteran's current tinnitus began during service, is related to his in-service acoustic trauma, and has continued since. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding the claim for entitlement to service connection for diabetes mellitus, type II, to include as due to alleged herbicide exposure have been met; the Board has no further jurisdiction in this matter. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The August 2008 rating decision that denied the Veteran's claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. § §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1966 to March 1967. Withdrawn Claim Entitlement to service connection for diabetes mellitus type II, to include as due to alleged herbicide exposure is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204 (b)(3). In a February 2021 correspondence, the Veteran indicated that he wished to withdraw his claim for entitlement to service connection for diabetes mellitus, type II to include as due to alleged herbicide exposure. Under the circumstances, the Board finds that it is quite clear that there is no longer any allegation of factual or legal error remaining for appellate consideration with respect to the appeal. As such, the Board no longer has any jurisdiction in the matter, and it must be dismissed. Petition to Reopen and Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). New and material evidence having been received the Veteran's claim for entitlement to service connection for tinnitus is reopened. The Veteran initially claimed entitlement to service connection for tinnitus in April 2008, which was denied in a decision issued in August 2008. Of record at the time of the August 2008 rating decision were the Veteran's service treatment records as well as lay statements. The RO found no evidence of the Veteran's claimed tinnitus. Consequently, the RO denied the Veteran's claim for entitlement to service connection. The Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for tinnitus was not received until August 2016, when VA received his application to reopen such claim. Therefore, the August 2008 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for tinnitus was received prior to the expiration of the appeal period stemming from the August 2008 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The evidence received since the August 2008 decision includes post-service treatment records, a VA examination in October 2016, and lay statements. The Veteran further contends that he suffered from tinnitus as a result of acoustic trauma in service that such began during his active duty service and has continued since. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Presuming the credibility of the Veteran's statements pursuant to Justus, 3 Vet. App. at 513 and, in light of the VA examination, the Board finds that the evidence received since the August 2008 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection. See 38 C.F.R. § 3.156 (a). In this regard, the Veteran's claim for tinnitus was previously denied as there was no evidence of a current disability. Furthermore, it was previously noted that in addition to no definitive diagnosis there was no evidence that the claimed condition began in or was caused by service. Since such time, the Veteran's records indicate that he has a diagnosis of tinnitus and that he contends that such began during and has continued since service. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. The Veteran alleges that he suffers from tinnitus as a result of his active duty service. Specifically, he contends such is due to his acoustic trauma during service. Furthermore, he contends that his tinnitus began in service and has continued since such time. At the outset, the Board notes that tinnitus is a simple disease that is observable by lay persons. Moreover, it is a condition that is diagnosed based solely on subjective reports. Therefore, the Veteran is perfectly competent to both diagnose it and speak to its onset, course, and progression. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Crucially, the Board has found no reason to question the veracity of his statements endorsing tinnitus either now or in service. Consequently, such statements are competent, credible, and probative evidence indicating that the Veteran has a diagnosis of tinnitus that also manifested during service. As such, the presumption under 38 U.S.C. § § 1112 for chronic diseases applies, as tinnitus is considered an organic disease of the nervous system, and presumptive service connection for tinnitus is warranted. In so finding, the Board is cognizant of the negative medical opinion in the record. However, it is critical to note that the October 2016 examiner did not adequately consider the Veteran's own competent statements regarding the onset and course of his tinnitus in service. Moreover, the VA examiner seemed to base his opinion solely on the Veteran not reporting ringing in his ears prior to 2010 and the absence of a discharge audiogram. Furthermore, the examiner indicated that he could not provide a definitive etiological opinion without resorting to speculation. Therefore, the Board finds such opinion inadequate and as such not probative evidence in this matter. Consequently, the Board finds the evidence in the record is at least in relative equipoise and, resolving all remaining reasonable doubt in the Veteran's favor, service connection for tinnitus must be granted. REASONS FOR REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § § 5103A (d); 38 C.F.R. § § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that while the Veteran underwent VA Male Reproductive Systems Conditions and Sleep Apnea examinations in October 2016 and January 2018, additional examinations to determine the nature and etiology of the Veteran's claimed erectile dysfunction and sleep apnea are required. Furthermore, the Board notes that no examination has been conducted regarding the Veteran's claimed vertigo, and therefore an examination is required. Entitlement to service connection for erectile dysfunction and sleep apnea, to include as secondary to service-connected PTSD and anxiety and nightmares and/or as due to herbicide exposure are remanded. The Veteran contends that he suffers from erectile dysfunction and sleep apnea as a result of his active duty service. Specifically, the Veteran contends that his conditions are the direct result of alleged herbicide exposure during his active duty service or were caused or aggravated by his service-connected PTSD. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of erectile dysfunction or sleep apnea. However, post-service records reflect that the Veteran was diagnosed with erectile dysfunction in 1996 and sleep apnea in 2011. The Board notes that in August 2016 the Veteran submitted a private Sleep Apnea examination with an accompanying disability benefits questionnaire (DBQ). While the examiner noted that the Veteran was diagnosed with Sleep Apnea, he did not provide an etiological opinion. In January 2018 a VA Medical Opinion was obtained to determine the likely etiology of the Veteran's sleep apnea. The examiner found that the Veteran's sleep apnea was less likely than not proximately due to or the result of his service-connected condition. The examiner provided the rationale that while research has indicated a correlation between PTSD and sleep apnea there is no evidence of a causal relationship. Therefore, the examiner found that as the medical research did not show that PTSD causes sleep apnea, it was less likely than not that the Veteran's sleep apnea was proximately due to or the result of his PTSD. However, the Board notes that the examiner not only did not discuss the aggravation prong of secondary service connection, he also did not discuss the Veteran's theories of direct service connection to include alleged herbicide exposure. In October 2016 the Veteran underwent a VA Male Reproductive System Conditions examination with an accompanying DBQ. The examiner noted that the Veteran had been diagnosed with erectile dysfunction in 1996 but found that such was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner provided the rationale that the Veteran had documented diabetes, coronary artery disease, hypogonadism with low testosterone and was on medication that could cause erectile dysfunction. Furthermore, the examiner noted that no causal relationship between PTSD and erectile dysfunction had been established. Finally, the examiner stated that he was not "aware of any research, scientific or medical literature that supports the contention [that] PTSD causes or permanently aggravates erectile dysfunction." The Board notes that while the examiner touched on the aggravation prong of secondary service connection, his opinion is speculative in nature. The Board finds that the terminology used by this physician does not provide a sufficient basis for a grant or denial of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). Furthermore, the examiner did not discuss the Veteran's theories of direct service connection to include alleged herbicide exposure. Therefore, as the Board finds fault in the August and October 2016 examinations as well as the January 2018 opinion, a remand is necessary to obtain new VA examinations with etiological opinions which fully consider all of the Veteran's allegations, both direct and secondary. Entitlement to service connection for vertigo, to include as secondary to service-connected PTSD and anxiety and nightmares and/or as due to alleged herbicide exposure is remanded. The Veteran contends that he suffers from vertigo as a result of his active duty service. Specifically, the Veteran contends that his condition is the direct result of alleged herbicide exposure during his active duty service or was caused or aggravated by his service-connected PTSD. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of any vestibular disorders. However, his post-service treatment records reflect complaints of and treatment for vertigo. Furthermore, the Board notes that while his alleged exposure to herbicides has not been confirmed, the Veteran is service-connected for PTSD. Therefore, as the Veteran has provided evidence of a current disability as well as plausible allegations of direct and secondary service connection, an etiological examination is warranted. The Board notes that no examination has been conducted to determine the nature and etiology of the Veteran's claimed vertigo. Therefore, on remand a VA examination with an etiological opinion should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. After obtaining all outstanding records, return the claims file to the October 2016 VA examiner for an addendum opinion. If the October 2016 VA examiner is unavailable, the claims file should be forwarded to an appropriate medical professional to provide the opinion. After reviewing the claims file, the examiner is requested to offer an addendum opinion that specifically addresses the following questions. a) The examiner should identify all current male reproductive system disabilities, to include erectile dysfunction. b) For each currently diagnosed male reproductive system disability, is it at least as likely as not (a 50 percent or higher probability) that such disability is related to his service, to include his alleged exposure to herbicides therein. A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. c) For each currently diagnosed male reproductive system disability, was such CAUSED OR AGGRAVATED by the Veteran's service-connected PTSD? A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. 3. Return the claims file to the January 2018 VA examiner for an addendum opinion. If the January 2018 VA examiner is unavailable, the claims file should be forwarded to an appropriate medical professional to provide the opinion. After reviewing the claims file, the examiner is requested to offer an addendum opinion that specifically addresses the following questions. a) The examiner should confirm the Veteran's diagnosis of obstructive sleep apnea. b) For currently diagnosed sleep apnea, is it at least as likely as not (a 50 percent or higher probability) that such disability is related to his service, to include his alleged exposure to herbicides therein. A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. c) For currently diagnosed sleep apnea, was such CAUSED OR AGGRAVATED by the Veteran's service-connected PTSD? A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. 4. The Veteran should be afforded a VA examination to determine the etiology of his claimed vestibular disorder, to include vertigo. The record should be made available to and be reviewed by the examiner. After reviewing the claims file, the examiner is requested to offer an opinion that specifically addresses the following questions. a) The examiner should identify all current vestibular disorders, to include vertigo. b) For each currently diagnosed vestibular disorder, is it at least as likely as not (a 50 percent or higher probability) that such disability is related to his service, to include his alleged exposure to herbicides therein. A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. c) For each currently diagnosed vestibular disorder, was such CAUSED OR AGGRAVATED by the Veteran's service-connected PTSD? A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. In rendering their opinions, the examiners MUST consider and weigh the Veteran's relevant lay statements of record. The examiners are reminded that dismissing the Veteran's statements as lay is not sufficient. The examiners are reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiners must provide a complete rationale for all opinions and conclusions reached. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.