Citation Nr: 1102429	
Decision Date: 01/21/11    Archive Date: 01/26/11

DOCKET NO.  07-11 108	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder, 
to include depression and posttraumatic stress disorder (PTSD). 

2.  Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and B.H.




ATTORNEY FOR THE BOARD

Douglas Massey, Counsel


INTRODUCTION

The Veteran had active service from September 1969 to August 1971 
and from April 1975 to April 1978.

This appeal arises from several different rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia.  There appears to be some confusion concerning 
the procedural history of this case, which requires clarification 
by the Board.  

In November 1999, the Veteran filed a claim for service 
connection for both physical and psychological trauma due a 
circumcision that was performed in 1976 while he was on active 
duty.  In a November 2002 rating decision, the RO denied service 
connection for residuals of a circumcision, including a mental 
disorder and multiple complaints.  The Veteran appealed the 
November 2002 rating decision by submitting a timely notice of 
disagreement in April 2004 and, after the RO issued a statement 
of the case in June 2004, a timely substantive appeal (VA Form 9) 
in June 2004.  See 38 C.F.R. §§ 20.200, 20.302 (2010).  

In a VA Form 21-4139 (Statement in Support of Claim) submitted in 
January 2005, the Veteran wrote, "request my appeal be withdrawn 
and request service connection for PTSD, which I have been 
diagnosed with at VAMC - Decatur, GA."  It thus appears that the 
Veteran wished to continue his appeal concerning his mental 
disorder, which he identified in his January 2005 statement as 
PTSD, but wanted to withdraw the remainder of his claim 
concerning his genitourinary symptoms.  See Clemons v. Shinseki, 
23 Vet. App. 1 (2009) (per curiam) (holding that the scope of a 
mental health disability claim includes any mental disability 
that reasonably may be encompassed by the claimant's description 
of the claim, reported symptoms, and the other information of 
record).  

Thus, his claim for service connection for a psychiatric disorder 
has been pending since his original claim in November 1999.  The 
Board points this out because a January 2006 rating decision 
incorrectly concluded that new and material evidence was required 
to reopen the claim for service connection for PTSD.  

The Veteran also appealed a May 2007 rating decision which denied 
service connection for sleep apnea.  As will be explained below, 
however, the Veteran has withdrawn the appeal of this claim. 



FINDINGS OF FACT

1.  The Veteran has a psychiatric disorder involving depression 
and PTSD as a result of a circumcision performed while on active 
duty.  

2.  At his hearing in September 2010, the Veteran submitted a 
statement indicating that he was withdrawing his claim for 
service connection for sleep apnea.  



CONCLUSIONS OF LAW

1.  Depression and PTSD were incurred during active service.  38 
U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).

2.  The criteria are met for withdrawal of the Veteran's appeal 
for service connection for sleep apnea.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002 & Supp. 2010); 38 C.F.R. § 20.204 
(2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before addressing the merits of the Veteran's claims on appeal, 
the Board is required to ensure that the VA's "duty to notify" 
and "duty to assist" obligations have been satisfied.  See 38 
U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  
However, this decision concerning the claim for service 
connection for a psychiatric disorder constitutes a complete 
grant of the benefits sought on appeal, while the claim for 
service connection for sleep apnea has been withdrawn.  As such, 
the Veteran cannot be prejudiced by any possible defect in the 
VA's "duty to notify" and "duty to assist" obligations.  
Therefore, the Board finds that a discussion of the VA's "duty 
to notify" and "duty to assist" obligations is unnecessary.  

I.  Service Connection for a 
Psychiatric Disorder

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by service.  See 38 
U.S.C.A. §§ 1110, 1131; 38 C.F.R.     § 3.303(a).  Stated 
somewhat differently, service connection requires: (1) medical 
evidence of a current disability; (2) medical, or in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence of a 
nexus (i.e., link) between the claimed in-service disease or 
injury and the current disability.  See Hickson v. West, 12 Vet. 
App. 247, 253 (1999).

Service connection for PTSD is somewhat unique in that it 
requires: [1] a current medical diagnosis of the condition in 
accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV, presumed to 
include the adequacy of the PTSD symptomatology and the 
sufficiency of a claimed in-service stressor), [2] credible 
supporting evidence that the claimed in-service stressor(s) 
actually occurred, and [3] medical evidence of a causal 
relationship between current symptomatology and the specific 
claimed in- service stressor(s).  See 38 C.F.R. § 3.304(f).

In this case, the Veteran claims that he developed a psychiatric 
disorder as a result of two events in service.  He claims that he 
suffers from both depression and PTSD due to a circumcision 
performed in 1976.  Also, he recently claimed that his PTSD is 
also due to a fire in a tank which he was driving during routine 
exercises.  Since medical evidence indicates that the Veteran 
suffers from both depression and PTSD as a result of the 
circumcision performed while on active duty, the Board will grant 
the claim on this basis. 

The Veteran's service treatment records (STRs) show that he 
underwent an elective circumcision in January 1976.  Therefore, 
this stressor has been confirmed.  See West (Carlton) v. Brown, 7 
Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 
(1993).  The remainder of the STRs, however, make no reference to 
complications or psychiatric problems following the circumcision.  
Nevertheless, medical evidence indicates that the Veteran 
subsequently developed depression and PTSD as a result of that 
procedure.  

The Veteran was afforded a VA psychiatric examination in March 
2001 to address this issue.  During the interview, the Veteran 
reported, "a lot of resentment, anger, and rage due to his 
circumcision which attacked his manhood and has caused a lot of 
sexual and relationship problems.  He states that he feels a 
sense of loss, and he has a diminished body image.  He says that 
he feels mutilated and deformed.  He says that he can still 
visualize the doctor sticking needles in his penis and he starts 
to feel pain in his penis.  He states that he stays angry, 
unhappy and anxious due to his sexual problems, problems with 
erections and orgasms."  Following a mental status examination, 
the VA examiner diagnosed the Veteran with (1) PTSD, chronic, and 
(2) sexual dysfunction due to circumcision.  The examiner then 
commented that the Veteran meets the criteria for PTSD based on 
his having "experienced pain and suffering with threat to his 
physical integrity due to circumcision."

The record also shows that the Veteran was involved in individual 
and group therapy with E.F.B., M.D., for PTSD due to the 
circumcision.  In an October 2005 letter, signed by both Dr. 
E.F.B. and C.H., MSW, it was noted that the Veteran suffered from 
PTSD as a result of the circumcision performed while on active 
duty, and that he continued to suffer from nightmares, flashbacks 
and depression as a result of that procedure.  The letter also 
states,"[The Veteran] is with a condition known as posttraumatic 
stress disorder and this condition is a result of his tour of 
duty while in the military and therefore this condition is a 
service connected ptsd disability." 

In addition to PTSD, medical evidence also attributes a diagnosis 
of depression (i.e. depression, depressive disorder, and major 
depressive disorder) to the circumcision.  Numerous VA treatment 
records dated since 2000 lists diagnosis of depressive disorder 
due to medical condition.  While the Veteran has many medical 
conditions, this diagnosis was often noted after the Veteran 
reported his history concerning the circumcision.  In other 
words, the diagnosis of "depressive disorder due to medical 
condition" effectively links the Veteran's depression to the 
circumcision in service.  

In conclusion, the medical evidence of record indicates that the 
Veteran developed depression and PTSD as a result of the 
circumcision that was performed while he was on active duty, 
irrespective of whether he suffers from a genitourinary 
disability related to that procedure.  The favorable opinions 
provided by a VA examiner in March 2001 and by the Veteran's 
private psychiatrist and social worker in October 2005, as well 
as the VA treatment records listing a diagnosis of depressive 
disorder due to medical condition, all provide compelling 
evidence in support of his claim.  Accordingly, service 
connection for a psychiatric disorder, to include depression and 
PTSD, is granted

II. Service Connection for Sleep Apnea

The Board may dismiss any appeal that fails to allege specific 
error of fact or law in the determination being appealed.  See 
38 U.S.C.A. § 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.  See 38 C.F.R. § 20.204.  In this 
particular case, the Veteran submitted a Statement in Support of 
Claim (VA Form 21-4138) in September 2010 indicating he was 
withdrawing his appeal for service connection for sleep apnea.  
Hence, there remain no allegations of errors of fact or law for 
appellate consideration.  Accordingly, since the Board does not 
have jurisdiction to review this issue on appeal, it is 
dismissed.


ORDER

Service connection for a psychiatric disorder, to include 
depression and PTSD, is granted. 

The appeal is dismissed concerning the claim for service 
connection for sleep apnea. 



____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs