Citation Nr: 22015192 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 20-16 609 DATE: March 16, 2022 ORDER The appeal pertaining to the claim of entitlement to service connection diabetes mellitus is dismissed. New and material evidence has been received to reopen the claim of entitlement to service connection for infectious hepatitis; the appeal is granted to this extent only. REMANDED Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for infectious hepatitis is remanded. Entitlement to a total disability rating based on individual employability (TDIU) is remanded. FINDINGS OF FACTS 1. At his June 2021 Board of Veterans' Appeals (Board) hearing and prior to a promulgation of a decision in the appeal, the Veteran withdrew his appeal of the claim for entitlement to service connection for diabetes mellitus. 2. The claim for entitlement to service connection for infectious hepatitis was denied in July 1970. The Veteran did not file notice of disagreement (NOD) with the rating decision; thus, the July 1970 rating decision is final. 3. Evidence added to the record since the final July 1970 decision is new and material, and it raises a reasonable possibility of substantiating the service connection for infectious hepatitis claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The July 1970 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for infectious hepatitis. 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 June 1966 to July 1968. These matters come before the Board on appeal from a rating decision issued in April 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that a claim for TDIU was raised by the evidence of record. See July 2019 DRO hearing. The claim is part-and-parcel of the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Dismissal 1. Entitlement to service connection for diabetes mellitus 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. On the record at his June 2021 Board hearing and prior to a promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to service connection for diabetes mellitus. The Board finds that the Veteran's withdrawal of the appeal was "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." See generally DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The withdrawal was also provided in the presence of his representative. Hence, there remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board finds that the claim must be dismissed. Application to Reopen a Previously Denied Claim 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for infectious hepatitis In this case, the agency of original jurisdiction (AOJ) originally denied service connection for infectious hepatitis in a July 1970 rating decision. At such time, the AOJ considered the Veteran's available service treatment records. The AOJ denied service connection for infectious hepatitis because no residual disability was shown at the time of discharge. Later that same month, the Veteran was advised of the decision and of his appellate rights. However, he did not enter NOD with such decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. 38 C.F.R. § 3.156 (b), (c). The July 1970 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. 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 evidence not previously submitted to agency decisionmakers. Material evidence means 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 United States Court of Appeals for Veterans Claims (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). The evidence received since the July 1970 final rating decision includes lay statements from the Veteran, VA treatment records, a March 2017 VA examination report, and the Veteran's June 2021 hearing testimony. While the March 2017 VA examiner indicated that there were no residuals from the Veteran's infectious hepatitis, the examiner also wrote that the Veteran developed infectious hepatitis in service and that it was related to service. Additionally, at the June 2021 Board hearing, when liberally construing the Veteran's testimony, the Veteran suggested that he currently experiences residuals from hepatitis. Based on the foregoing, the Board finds that the aforementioned newly received evidence is material as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim because, when considered with the old evidence, it at least triggers the duty to assist. Therefore, new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis. The matter is addressed in the remand portion of the decision. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 70 percent for PTSD With respect to the claim for higher initial rating for PTSD, the Veteran and his representative essentially contend that the severity of the Veteran's PTSD symptoms warrant a higher rating. In this regard, the record reflects that the Veteran was examined by VA in March 2017 and December 2019. However, at his June 2021 Board hearing, the Veteran testified that he had difficulty focusing and concentrating. He further reported difficulties with relationships, completing tasks, and memory recall. He also reported that he had not worked since October 2018 due to his problems with communicating and getting along with other employees. As the record indicates that the Veteran's PTSD symptoms may have worsened, the Veteran should be afforded a new VA examination to ascertain the current severity of his PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD 5. Entitlement to service connection for a left knee disorder 6. Entitlement to service connection for a right knee disorder 7. Entitlement to service connection for a neck disorder The Veteran contends that his sleep apnea is due to his service-connected PTSD. In this regard, he stated that his psychiatric condition aggravates his ability to sleep and breathe at night. The Board notes that the Veteran's treatment records show that he has been diagnosed with sleep apnea; however, the December 2019 VA examiner noted that the Oak Park Hospital sleep study report was not of record. As such, these outstanding private treatment records should be obtained and associated with the claims file. Regarding the bilateral knee and neck claims, the Veteran reported that he injured his left knee in 1967 when he fell on a metal rack in service. He further stated that the injury was productive of symptoms that have continued since service and contributed to his right knee problems. This is, the Veteran maintains that he experiences "giving out" symptoms due to an antalgic gait that has developed as a result of the left knee injury. He also asserts that his antalgic gait caused him to develop arthritis in his neck. The Board finds that the low threshold of the McLendon standard has been met, and that a remand is necessary to obtain VA opinions to determine the nature and etiology of the Veteran's bilateral knee disorder, neck disorder, and sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to service connection for infectious hepatitis The Veteran essentially maintains that he contracted infectious hepatitis in service and that he continues to experience residuals therefrom. The Veteran's service treatment records do show that when the Veteran returned from Vietnam he was hospitalized for infectious hepatitis from May 1968 through July 1968. The hospital discharge diagnosis was infectious hepatitis. A line of duty notation was also included. Although the Veteran's separation from service examination shows normal findings, the Veteran maintains that he continues to experience residuals from the infectious hepatitis post service. Given the in-service hospitalization, the Veteran's lay statements, and the March 2017 VA examiner's comments, noting normal findings yet attributing the Veteran's infectious hepatitis to service, the Board finds that an examination is needed to ascertain whether the Veteran experiences any residuals from his in-service infectious hepatitis. McLendon, supra. 9. Entitlement to a TDIU In the June 2021 hearing, the Veteran reported that he last worked in October 2018, and he found it difficult to work because he had issues with other employees. The Veteran's TDIU claim is inextricably intertwined with the increased rating for PTSD claim, which is being remanded. Thus, the adjudication of the TDIU matter is being deferred. Also, the Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A completed form should be obtained on remand. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private treatment records relevant to the claims on appeal, to include records related to his sleep study report from the Oak Park Hospital. After obtaining any necessary authorization from the Veteran, all outstanding relevant records from all indicated sources should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and provide an opportunity to submit the reports. 2. Ask the Veteran to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. 3. The Veteran should be afforded a new VA examination to determine the current nature and etiology of his service-connected PTSD. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD, and the resulting impairment in his social and occupational functioning. 4. Schedule the Veteran for appropriate VA examinations in order to determine the current nature and etiology of his neck disorder, bilateral knee disorder, sleep apnea, and infectious hepatitis. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the record, the examiner should address the following inquiries: (A) Identify any disability or residuals resulting from hepatitis. If no disability or residuals are present, the examiner should clearly state so. For every identified disability or residual attributable to hepatitis, is it at least as likely as not (a 50 percent or greater probability) that the disorder or residual is related to service or any event of service, to include the Veteran's 1968 hospitalization for infectious hepatitis? (B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had its onset in or is otherwise related to the Veteran's military service? (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea was proximately due to or aggravated by service-connected PTSD? (D) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral knee or neck disorder had its onset in or is otherwise related to the Veteran's military service? (E) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee or neck disorder was proximately due to or aggravated by a left knee disorder? The term "aggravation" in the above context refers to any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. The examiner must address the Veteran's statements and history regarding the onset and continuity of the claimed disorders. In offering an opinion, the examiner must acknowledge that the Veteran is competent to report his in-service symptoms and the continuity of his symptomatology he perceives since service. A rationale for any opinion rendered should be provided. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to the claimed disorders. 5. After completing the above actions, the Veteran's claims should be readjudicated. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.