Citation Nr: 22014635 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-50 255A DATE: March 14, 2022 ORDER Entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a service-connected condition is dismissed. Entitlement to service connection for tinnitus is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) to include as due to military sexual trauma (MST) is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) to include as due to military sexual trauma (MST) is denied. REMANDED Entitlement to an evaluation in excess of 50 percent for mood disorder is remanded. Entitlement to an evaluation in excess of 10 percent for a lumbar spine condition is remanded. Entitlement to an evaluation in excess of 10 percent for a left knee condition is remanded. Entitlement to an evaluation in excess of 10 percent for a right knee condition is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for a left leg length discrepancy is remanded. FINDINGS OF FACT 1. On October 28, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the issue of entitlement to service connection for a temporary total evaluation. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of acoustic trauma during active-duty service. 3. In a July 2005 rating decision, the RO denied the Veteran's claims of entitlement to service connection for PTSD. The Veteran was duly notified of the decision and his appellate rights, but she did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 4. Evidence received since the final July 2005 rating decision confirming the previous denial of service connection for PTSD relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for PTSD. 5. The Veteran has not been shown to have met the DSM-V criteria for a current diagnosis of PTSD during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for a temporary total evaluation by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. 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. New and material evidence has been received to warrant reopening of the claim of service connection for PTSD to include as due to MST. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for PTSD are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1984 to September 1986. This matter is before the Board on appeal from January 2013 and May 2015 rating decisions issued by a Regional Office of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at an October 2021 Board Hearing. The hearing transcript has been associated with the claims file. 1. Entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a service-connected condition is dismissed. 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. 38 C.F.R. § 20.205. In the present case, the Veteran requested to withdraw her claim of entitlement to service connection for a temporary total evaluation due to hospital treatment in excess of 21 days during the October 2021 hearing. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remains no allegations of errors of fact or law for appellate consideration for the above issue. Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to service connection for a temporary total evaluation due to hospital treatment in excess of 21 days and the issue is dismissed. Service Connection 2. Entitlement to service connection for tinnitus is granted. The Veteran maintains she suffers from tinnitus due to in-service acoustic trauma. For the reasons that follow, the Board finds her claim is warranted. Service connection may 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(a). To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially 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). At the October 2021 hearing, the Veteran stated that she was exposed to the artillery noise from a 50-caliber weapon while in service. The Veteran's DD-214 indicates an MOS of an administrative position but it also notes that she had been awarded decorations for sharp shooting. The Veteran underwent a VA hearing loss examination in October 2017. The examiner denied nexus for tinnitus. The examiner stated that individuals that were exposed to high noise levels typically reported tinnitus. The Veteran could not recall an exact date of onset and there was no documentation in the Veteran's file regarding tinnitus. As such, nexus was not found. The evidence demonstrates a present disability of tinnitus. Thus, the first requirement for the establishment of service connection is established. The Veteran has also described the noise exposure she experienced in service. The Board finds no reason to question her account of exposure from noise resulting from shooting weapons in service. The Veteran's claims of noise exposure are also supported by the Veteran's service treatment records. Thus, exposure to acoustic trauma is conceded. There is persuasive evidence both for and against her claim. Therefore, the evidence of record is at least in equipoise as to whether the claimed tinnitus was incurred in service. Resolving all doubt in favor of the Veteran, service connection for tinnitus is granted. 3. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for PTSD due to MST is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a July 2005 rating decision, the RO denied service connection because there was no evidence of a valid PTSD diagnosis linked to an in-service stressor or credible evidence that an in-service stressor occurred. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 2005 decision includes VA treatment records up until February 2005; military personnel records; and the Veteran's statement in support of her PTSD claim. Evidence submitted after the July 2005 decision includes 1) VA treatment records; 2) private treatment records; 3) a VA examination for PTSD; and 4) an October 2021 hearing transcript. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim credible evidence of an in-service stressor. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Accordingly, for all of the above reasons, the Veteran's claim is reopened. 4. Entitlement to service connection for PTSD due to MST is denied. The Veteran contends that she is entitled to service connection for PTSD due to MST. At her October 2021 Board hearing the Veteran testified that she had nightmares about the in-service assault. The Veteran was provided with a VA examination to address her claim of PTSD in November 2017. The examiner determined that the Veteran did not meet the DSM-V criteria for PTSD. The examiner noted that the Veteran's records did contain markers to support the Veteran's account of MST but stated that she did not meet the criteria for PTSD, and she had not been previously diagnosed by qualified VA providers. The Veteran was provided with VA examinations to evaluate her mood disorder in March 2010, September 2012, and March 2017. In each VA examination the Veteran was found not to have a diagnosis of PTSD. There was evidence of a PTSD diagnosis in early-2005, however there was no indication of what criteria was utilized in diagnosing the Veteran. It was also noted by the Board that there was no evidence that this PTSD diagnosis was made in relation to in-service stressors, including the MST. The Veteran was diagnosed with PTSD in December 2009 VA treatment records following a mental health assessment. The Board notes, however, that the Veteran was diagnosed according to her GAF score and not according to the DSM. The Board finds that entitlement to service connection for PTSD is not warranted as the competent evidence of record does not indicate the Veteran has been diagnosed with PTSD in accordance with 38 C.F.R. § 4.125. Thus, even considering the Veteran's contentions, the persuasive evidence is against the claim as it lacks the requisite DSM- V diagnosis of a psychiatric condition. Accordingly, service connection is not warranted as this claim lacks a current disability of PTSD that conforms with the DSM-V. Importantly, the Board is not finding that the Veteran did not experience MST in service; however, absent a diagnosis of PTSD during the appeal period, service connection cannot be awarded. As the claim lacks the initial threshold of a current disability, further analysis is not warranted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for mood disorder is remanded. 2. Entitlement to an evaluation in excess of 10 percent for a lumbar spine condition is remanded. 3. Entitlement to an evaluation in excess of 10 percent for a left knee condition is remanded. 4. Entitlement to an evaluation in excess of 10 percent for a right knee condition is remanded. The Veteran contends her service-connected mood disorder, lumbar spine condition, and bilateral knee conditions are worse than evaluated. At the October 2021 hearing, the Veteran testified that her conditions had all worsened since her last VA examination. The Veteran expressed that she had not been comfortable with her VA examiner at her last examination to evaluate her mental health conditions and intimated that she could not express the true extent of her symptoms. She also reported that she was unable to bend over, sit down, get up, or extend her legs due to her lumbar spine and bilateral knee conditions. The Veteran last underwent a VA examination for mental health conditions in connection with her claim for an increased evaluation for mood disorder in March 2017. The most recent lumbar spine and knee VA examinations of record were also provided in March 2017. The examinations are unduly remote, as they are over five years old, and the Veteran has reports of worsening symptomatology. The Board is unable to determine the current severity of the Veteran's service-connected conditions. The record supports that the Veteran's conditions may have worsened since her last VA examinations. When the evidence suggests that a disability has worsened since a Veteran's last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. 5. Entitlement to service connection for a bilateral foot condition is remanded. 6. Entitlement to service connection for a left leg length discrepancy is remanded. The Veteran contends that her bilateral foot condition is related to service. She also claims that the bilateral foot condition and left leg length discrepancy are secondary to her service connected left hip condition. The Veteran reported that during service she was issued footwear that damaged her feet along with the constant marching. She also noted that she was not born with a leg length discrepancy and that it occurred following treatment for her left hip condition. October 2014 VA treatment records noted that the right foot had some tenderness of the plantar fascia and May 2017 VA treatment records noted plantar fasciitis in the Veteran's problem list. May 2012 treatment records noted that there was a one-inch discrepancy between the Veteran's left and right leg. In August 2013 VA treatment records the Veteran requested a shoe lift to compensate for the shortening of her left leg. October 2014 VA records indicated that the Veteran's left leg was more than 2 centimeters shorter than her right leg. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to decide the matter. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. As noted, there is evidence of a foot condition and leg length discrepancy. Although her STRs are silent for complaints of or a finding of a bilateral foot condition, she is competent to state what she experienced during service and the Board has no reason to doubt her credibility regarding her reports of pain due to marching in the military issued boots. The Board also notes that the Veteran is properly service connected for the left hip condition which she states may have caused or aggravated her bilateral foot condition and left leg length discrepancy. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her service-connected mood disorder. 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 rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the mood disorder alone and discuss the effect of the Veteran's psychiatric condition on any occupational functioning and activities of daily living. If feasible, the examination should be scheduled with a female healthcare provider. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her service-connected lumbar spine condition. 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 rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine condition alone and discuss the effect of the Veteran's back condition on any occupational functioning and activities of daily living. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her service-connected bilateral knee condition. 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 rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral knee condition alone and discuss the effect of the Veteran's knee condition on any occupational functioning and activities of daily living. 4. Provide the Veteran with an appropriate examination to diagnose and determine the etiology of any diagnosable bilateral foot condition. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosable foot condition had onset in, or is otherwise related to, active military service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any diagnosable foot condition is caused or aggravated by the service-connected left hip condition. 5. Provide the Veteran with an appropriate examination to determine the etiology of her left leg length discrepancy. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left leg length discrepancy had onset in, or is otherwise related to, active military service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the left leg length discrepancy is caused or aggravated by the service-connected left hip condition. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.