Citation Nr: 1134874 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 07-13 690A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for visual impairment. 2. Entitlement to an initial compensable evaluation for erectile dysfunction. 3. Entitlement to special monthly compensation for loss of use of a creative organ. 4. Entitlement to service connection for posttraumatic stress disorder. 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to exposure to herbicides. 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to exposure to herbicides. 7. Entitlement to service connection for hypertension, to include as secondary to diabetes. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland (RO). The issues of entitlement to service connection for hepatitis C and colitis appear to have been raised by correspondence dated in April 2003, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for peripheral neuropathy of the right and left upper extremities, to include as secondary to exposure to herbicides; entitlement to service connection for hypertension, to include as secondary to diabetes; and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDINGS OF FACT 1. In January 2011, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for visual impairment. 2. In January 2011, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to an initial compensable evaluation for erectile dysfunction. 3. In January 2011, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to special monthly compensation for loss of use of a creative organ. 4. The Veteran has a current diagnosis of posttraumatic stress disorder (PTSD) that is associated with in-service stressors which are related to fear of hostile military activity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for visual impairment have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010). 2. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an initial compensable evaluation for erectile dysfunction have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010). 3. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to special monthly compensation for loss of use of a creative organ have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010). 4. PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2010); 3.304(f)(3) (July 13, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Visual Impairment, Erectile Dysfunction, and Special Monthly Compensation In June 2005, the Veteran filed a claim of entitlement to an increased evaluation for service-connected diabetes and entitlement to service connection for visual impairment. By a rating decision dated in December 2005, service connection for erectile dysfunction was granted while the visual impairment claim was denied. The Veteran filed a notice of disagreement with this rating decision in February 2006, including an increased evaluation for erectile dysfunction, and perfected an appeal to both of these issues in May 2007. The issue of entitlement to special monthly compensation for loss of use of a creative organ was separated out from the erectile dysfunction claim in a July 2010 supplemental statement of the case, and the Veteran perfected an appeal as to this issue in July 2010. At his January 2011 hearing before the Board the Veteran stated that he wished to withdraw his claims as to these three issues. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which 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, 20.204(b). Withdrawal may be made by the Veteran or by his authorized representative, except that a representative may not withdraw a substantive appeal filed by the Veteran personally without the express written consent of the Veteran. 38 C.F.R. § 20.204(c). Oral statements are valid for the purpose of withdrawing a claim if made by the Veteran while on the record at a hearing. 38 C.F.R. § 20.204(b). With regard to the issues of entitlement to service connection for visual impairment, entitlement to an initial compensable evaluation for erectile dysfunction, and entitlement to special monthly compensation for loss of use of a creative organ, prior to the promulgation of a decision by the Board, the Veteran indicated that he wished to withdraw his appeal as to these issues. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to the issues of entitlement to service connection for visual impairment, entitlement to an initial compensable evaluation for erectile dysfunction, and entitlement to special monthly compensation for loss of use of a creative organ. As such, the Board finds that the Veteran has withdrawn his claims as to these issues, and accordingly, the Board does not have jurisdiction to review the appeal as to the issues of entitlement to service connection for visual impairment, entitlement to an initial compensable evaluation for erectile dysfunction, and entitlement to special monthly compensation for loss of use of a creative organ, and they are dismissed. PTSD In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the Veteran's claim for service connection for PTSD as the Board is taking action favorable to the Veteran by granting service connection for this disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, as discussed below, after the claim was certified to the Board, the Veteran submitted significant amounts of VA medical records to the Board. While the Veteran's representative specifically declined to waive agency of original jurisdiction review of this evidence, there is no prejudice to the Veteran by proceeding with adjudication of the PTSD claim as the claim is being granted. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders. 38 C.F.R. § 4.125. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1). Furthermore, if the Veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Fossie v. West, 12 Vet. App. 1, 6 (1998). During the pendency of this appeal, the criteria for verifying in-service stressors were amended, effective July 13, 2010. The amendment states that If a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (July 13, 2010). The Veteran's service treatment records are negative for any complaints or diagnosis of a psychiatric disorder. After separation from military service, an April 2003 VA outpatient medical report provided a diagnosis of PTSD. The medical evidence of record shows diagnoses and treatment for PTSD since April 2003. The medical evidence of record shows that the Veteran has a current diagnosis of PTSD for VA purposes. See 38 C.F.R. § 4.125. The Veteran's claim has been denied on the basis that there was insufficient evidence to corroborate the claimed stressors. See VAOPGCPREC 12-99; 65 Fed. Reg. 6257 (2000). In this regard, there are no references to combat in the Veteran's DD Form 214 and he did not earn any decorations, medals, badges, ribbons, or awards indicative of participation in combat. As such, the Veteran's claimed stressors must be corroborated by credible supporting evidence. 38 C.F.R. § 3.304(f). However, the regulatory changes which became effective on July 13, 2010 state that the Veteran's lay testimony alone is sufficient to establish the occurrence of claimed in-service stressors if those stressors are related to the Veteran's fear of hostile military or terrorist activity. The medical evidence of record demonstrates that the Veteran has reported both combat and non-combat military stressors. The non-combat stressor was first discussed in April 2003, and involved the Veteran being assaulted by other soldiers while he was stationed in Germany. There is no corroborating evidence of this stressor and it is on this basis that the Veteran's claim has repeatedly been denied. However, the medical evidence of record also shows that the Veteran has combat-related stressors which have been associated with his diagnosed PTSD. A September 2004 VA outpatient medical report stated that the Veteran had "combat related trauma," and noted that, while the Veteran had a non-combat related stressor, he would "benefit from addressing his combat related [PTSD]. It is important however, that he learn to let go of the trauma that he experienced outside of combat. For [the Veteran] to fully heal from both traumas, he must focus now on the PTSD that is subs[e]quent from combat." The diagnosis was PTSD. An October 2004 VA outpatient medical report included a discussion of the Veteran's duties in Vietnam, and the Veteran discussed multiple incidents in which his duty station was attacked by the enemy. After psychiatric examination, the diagnosis was "PTSD prolonged, combat related." The medical evidence of record shows that the Veteran was subsequently admitted to a VA group for treatment of combat-related PTSD. VA PTSD group notes dated in November 2005 gave a diagnosis of "PTSD prolonged, combat related." The Veteran's service personnel records show that he served in Vietnam from July 7, 1967 to July 7, 1968. The Board finds that the medical evidence of record demonstrates that the Veteran has both combat and non-combat related PTSD stressors. In addition, the Board finds that the combat stressors cited in the October 2004 VA outpatient medical report are clearly related to the Veteran's fear of hostile military activity and that his statements are consistent with the circumstances of service in Vietnam during the period of time when he was stationed there. Therefore, in accordance with the regulatory changes made to 38 C.F.R. § 3.304(f)(3), effective July 13, 2010, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors. Accordingly, regardless of whether the Veteran's non-combat stressor is corroborated or whether his service personnel records demonstrate that he "engaged in combat with the enemy" for VA purposes, there is credible evidence of record which establishes the occurrence of the Veteran's claimed combat stressors. As such, the Board finds that the Veteran has a current diagnosis of PTSD that is associated with in-service stressors related to fear of hostile military activity. Accordingly, applying the doctrine of reasonable doubt, the Board finds that the Veteran's PTSD is related to active military service and therefore, service connection for PTSD is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for visual impairment is dismissed. The claim of entitlement to an initial compensable evaluation for erectile dysfunction is dismissed. The claim of entitlement to special monthly compensation for loss of use of a creative organ is dismissed. Service connection for PTSD is granted. REMAND A review of the Veteran's claims file reveals that the remaining matters are not ready for appellate disposition. In March 2011, the Veteran submitted approximately 750 pages of VA medical records to the Board. These records include reports which are relevant to the Veteran's claims regarding peripheral neuropathy of the left and right upper extremities, hypertension, and a low back disorder. These records have not been previously considered by the RO in conjunction with the current appeal. See 38 C.F.R. §§ 19.37, 20.1304 (2010). In a March 2011 letter, the Veteran's representative specifically declined to waive RO jurisdiction of these records. Accordingly, the case is remanded for the following action: In light of the additional evidence submitted without a waiver of RO jurisdiction, the RO must readjudicate the remaining claims on appeal and, thereafter, if any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). These claims 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. 2010). ______________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs