Citation Nr: 0814209 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-15 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The veteran had active service from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from a January 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in January 2008; a transcript is of record. The issue of service connection for PTSD is herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notice when further action is required by the appellant. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the veteran withdrew his appeal of the denial of service connection for tinnitus, in a January 2008 written statement. 2. Prior to the promulgation of a decision in the appeal, the veteran withdrew his appeal of the denial of service connection for bilateral hearing loss, in a January 2008 written statement. 3. At the January 2008 hearing, prior to the promulgation of a decision in the appeal, the veteran advised the Board, on the record, that he wished to withdraw his appeal of the denial of service connection for asthma. CONCLUSION OF LAW 1. Because the veteran has withdrawn his appeal relating to the issue of service connection for tinnitus, the Board does not have jurisdiction to consider that claim. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2007). 2. Because the veteran has withdrawn his appeal relating to the issue of service connection for bilateral hearing loss, the Board does not have jurisdiction to consider that claim. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. 3. Because the veteran has withdrawn his appeal relating to the issue of service connection for asthma, the Board does not have jurisdiction to consider that claim. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. By a January 2005 rating decision, the RO denied the veteran's claim for service connection for tinnitus, bilateral hearing loss, and asthma. The veteran filed a notice of disagreement as to that determination, a statement of the case was issued in March 2006, and he perfected his appeal by filing a VA Form 9 in May 2006. In a January 2008 written statement, the veteran withdrew his appeal for service connection for tinnitus and bilateral hearing loss. At his January 2008 hearing before the undersigned, the veteran indicated that he wished to withdraw the appeal for service connection for asthma. This statement constitutes an verbal withdrawal of the substantive appeal with regard to that matter, and has now been reduced to writing in the hearing transcript. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Thus, the Board does not have jurisdiction to review them, and they must therefore be dismissed, without prejudice. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b), (c). ORDER The appeal for service connection for tinnitus is dismissed. The appeal for service connection for bilateral hearing loss is dismissed. The appeal for service connection for asthma is dismissed. REMAND Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App 128 (1997). With respect to the second element, if the evidence shows that the veteran did not serve in combat with enemy forces during service, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). J.J.M., Ph.D., wrote in May 2004 that he had treated the veteran for six to eight months, and that the veteran was referred to him for emotional and behavioral difficulties due to previously diagnosed adult attention-deficit disorder and obsessive-compulsive disorder. Dr. M indicated that a difficult job situation and relationship problems had resulted in the veteran having some anxiety and moderate depression. The veteran had described several experiences from Vietnam, signs and symptoms which made Dr. M believe that he had combat-related PTSD which apparently went untreated. Dr. M opined that some of the signs and symptoms of PTSD had reoccurred in the past year due to the war in Iraq, suggesting that the veteran "may still be PTSD." The veteran had a VA examination in October 2006, and the examining psychologist had the opportunity to review the veteran's claims file. She opined that the veteran demonstrated symptoms of anxiety which did not qualify for PTSD, in that he was not able to recount highly traumatic incidents meeting the DSM criteria for PTSD. In this regard, the examiner reported that the veteran said he had not directly experienced any severe combat trauma, although mortars came into his installation about every other day and he saw wounded men in the distance, including a man who had an arm blown off. The examiner did not feel that the veteran had the full complement of PTSD symptoms. She diagnosed the veteran with generalized anxiety disorder and alcoholism (in partial remission), and said "[h]e likely has had a chronic anxiety, which was exacerbated when he [went] to Vietnam." At his Travel Board hearing before the undersigned, the veteran submitted a January 2008 statement in which he described an incident which he said took place during the 1968 Tet Offensive, which he had not previously reported to any treating or examining providers or to VA. He also testified about that incident at the hearing. The veteran said he was driving a three-quarter-ton truck heading towards the Phu Lam Signal Battalion on a road crowded with Vietnamese civilians, carts, and oxen. Sgt. L.J.H., and another soldier named G.S. were passengers in the truck, and due to a mortar attack they felt they were in danger and were in a hurry to reach their destination. The people on the road were not making an effort to let the truck pass despite the veteran's using the horn, and therefore Sgt. H ordered the veteran to drive through them. The veteran testified that he hit Vietnamese civilians who "flew out of the way" and that he does not know whether they were killed. He further testified that, before submitting his January 2008 statement, the only person with whom he had discussed the incident was his older sister, E.M.S., because it was so traumatic and stressful. The veteran also testified that no report of the incident was made, and that Sgt. H said to "keep it quiet." Because the veteran has provided new stressor information to the Board, it will be necessary to attempt verification or corroboration for the record. In addition, a new psychiatric examination may be necessary to determine whether any new stressor information can support a diagnosis of PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the veteran for as much information that he can provide regarding the stressor discussed above, including a date or approximate date, and statements from other individuals regarding the stressor. He should be informed that VA will assist him in attempting to contact Sgt. H and Mr. S in order to verify the stressor, if he can provide sufficient identifying information. If the veteran can locate them on his own, he should submit statements from one or both. He should also be asked to submit a statement from his older sister, Ms. S, as to when he told her of the incident, and what he related at the time. 2. If the recently described incident, above, can be corroborated, either by further information from the veteran or by additional research by the RO, the veteran should be scheduled for another psychiatric examination. All indicated tests and studies, including psychological examination/testing, if necessary, are to be performed. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. a. Advise the examiner that only those events which have been verified by the RO may be considered for the purpose of determining whether an in-service stressor has resulted in current psychiatric symptoms, and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the veteran is found to have PTSD, the examiner is requested to identify the diagnostic criteria, including the specific stressor(s) supporting the diagnosis. b. Any diagnosis of PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) of the American Psychiatric Association (DSM-IV). The examiner should review the findings in the October 2006 examination report and reconcile any contradictory evidence regarding the etiology of any diagnosed psychiatric disorder. c. If the examiner concludes that the veteran has a diagnosis of PTSD, the examiner should specifically address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the PTSD is a result of one or more in-service stressors verified by the RO. d. If the veteran has a psychiatric disorder other than PTSD, the examiner should opine as to whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the diagnosed psychiatric disorder was incurred in service or, if it pre-existed service, was aggravated therein. e. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. f. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. g. If any of the above questions cannot be answered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 3. After completing the requested action, and any additional notification and/or development deemed warranted, re-adjudicate the claim by evaluating all evidence obtained after the last SSOC was issued. If the benefit sought on appeal remains denied, furnish the veteran an appropriate SSOC and allow him a reasonable period of time to respond. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, including the VCAA and any other applicable legal precedent. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs