Citation Nr: 1303077 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-37 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder and a depressive disorder. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities. REPRESENTATION Appellant represented by: Madonna Richardson, Agent ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to June 1971. 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 Indianapolis, Indiana (RO). In June 2010, the Veteran's representative raised the issue of entitlement to a compensable rating for service-connected prostate cancer residuals for the period from October 1, 2006, to June 1, 2008. That claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that claim, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance evidence of record shows that, to the extent that the Veteran has a current diagnosis of a depressive disorder, that diagnosis is directly related to service or secondarily related to a service-connected disability. 2. The preponderance evidence of record shows that, to the extent that the Veteran has a current diagnosis of posttraumatic stress disorder (PTSD), that diagnosis is associated with in-service stressors which are conceded. 3. In September 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal on the issues of entitlement to service connection for tinnitus and peripheral neuropathy of the upper and lower extremities was requested. CONCLUSION OF LAW 1. A psychiatric disorder was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310, 4.125 (2012). 2. The criteria for withdrawal of an appeal by the appellant on the issues of entitlement to service connection for tinnitus and peripheral neuropathy of the upper and lower extremities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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) (2012). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by a service connected disability or aggravated by a service connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). 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. 38 C.F.R. § 3.304(f) (2012). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125 (2012). 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) (2012). 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. 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 (1998). However, 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 these purposes, "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) (2012). On a November 1969 pre-induction report of medical history, the Veteran reported that he had or had previously had depression or excessive worry and nervous trouble. He further reported that he had received a diagnosis of chronic anxiety by a physician who had prescribed medication. On clinical evaluation, no psychiatric abnormalities were noted. In a November 1969 service medical report, the Veteran complained of "bad nerves" and being unable to sleep. In an April 1971 separation report of medical history, the Veteran reported that he had or had previously had depression or excessive worry and nervous trouble. He further reported that he experienced depression and nervous trouble. On clinical evaluation, no psychiatric abnormalities were noted. After separation from service, an April 2005 VA medical report gave a diagnosis of alcohol abuse. The medical evidence of record shows that alcohol abuse has been consistently diagnosed since April 2005. In a November 2008 VA mental disorders examination report, the Veteran reported that he had been treated for depression while in service. Following a review of the Veteran's reported history and a psychiatric examination, the Axis I diagnoses were depressive disorder, not otherwise specified, and alcohol abuse. The examiner stated that they were likely separate disorders. The examiner opined that the Veteran's current depression appeared to be a continuation of depression that the Veteran experienced in service, and both were ongoing reactions to loss in which the Veteran felt empty and self-doubting. An October 2009 memorandum from the United States Army & Joint Services Records Research Center (JSRRC) stated that the Veteran's records had been reviewed. The JSRRC noted that the Veteran had served as a medic in Vietnam. Based on a review of the evidence of record and the Veteran's statements, the JSRRC stated that the Veteran's stressor was conceded as it was consistent with the circumstances, conditions, and hardships of the Veteran's service. An October 2009 VA PTSD examination report stated that the Veteran had received diagnoses of alcohol abuse, cannabis abuse, and rule out depressive disorder, not otherwise specified, in September 2003. Following a review of the Veteran's reported history and a psychiatric examination, the Axis I diagnosis was depressive disorder, not otherwise specified. The examiner stated that the Veteran met the criteria for a diagnosis of a depressive disorder, but did not meet the criteria for a diagnosis of PTSD. A November 2010 private PTSD examination report included a thorough review of the Veteran's reported history. Following psychiatric examination and diagnostic testing, the diagnosis was combat-related PTSD. The examiner stated that it was more likely than not that the Veteran' anxiety was related to incidents in service, and more likely than not that his depressive disorder was the result of his service-connected disabilities. The evidence of record shows that the Veteran has a current diagnosis of a psychiatric disorder which is related to service. Initially, the Board notes that, prior to entry into service, the Veteran reported he had or had previously had depression or excessive worry and nervous trouble, and had received a diagnosis of chronic anxiety by a physician. However, on clinical examination no psychiatric abnormalities were noted. Therefore, despite the Veteran's reported history, no preexisting psychiatric disorder was noted upon entrance into service, and, the Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002). The medical evidence of record is unclear as to the precise diagnosis of the Veteran's current psychiatric disorder. The November 2008 VA mental disorders examination report gave a diagnosis of a depressive disorder. Then the October 2009 VA PTSD examination report stated that the Veteran met the criteria for a diagnosis of a depressive disorder, but not PTSD. Finally, the November 2010 private PTSD examination report stated that the Veteran met the criteria for a diagnosis of PTSD, and also gave a diagnosis of a depressive disorder. However, the Board need not resolve the issue as to which diagnosis is correct, as the evidence of record shows that the Veteran's psychiatric disorder is related to service regardless of whether it is diagnosed as PTSD or a depressive disorder. To the extent that the Veteran has a current diagnosis of a depressive disorder, there are only two medical reports of record which comment on the etiology of that disorder. The November 2008 VA mental disorders examination report opined that the Veteran's current depression appeared to be a continuation of depression that he experienced in service. The November 2010 private PTSD examination report opined that it was more likely than not that the Veteran's depressive disorder was the result of his service-connected disabilities. Accordingly, the only medical evidence of record which comment on the etiology of the Veteran's depressive disorder either relate the Veteran's depressive disorder directly to service or secondarily to a service-connected disability. Therefore, to the extent that the Veteran has a current diagnosis of a depressive disorder, service connection for that disorder is warranted. To the extent that the Veteran has a current diagnosis of PTSD, the evidence of record shows that the Veteran served in Vietnam as a medic. There are no references to combat in the Veteran's service separation form and he did not earn any decorations, medals, badges, ribbons, or awards indicative of participation in combat. Therefore, the Veteran's claimed stressors must be corroborated by credible supporting evidence. 38 C.F.R. § 3.304(f) (2012). However, under 38 C.F.R. § 3.304(f)(3) (2012), the Veteran's lay testimony alone is sufficient to establish the occurrence of the claimed in-service stressors if those stressors are related to the Veteran's fear of hostile military or terrorist activity. The Veteran reported his in-service stressors as including being under rocket attack and treating casualties in Vietnam. The Board emphasizes that the October 2009 JSRR memorandum specifically stated that the Veteran's stressor was conceded as it was consistent with the circumstances, conditions, and hardships of the Veteran's service. Accordingly, the Board finds that the Veteran's stressors are clearly related to his fear of hostile military activity, and his statements are consistent with the circumstances of service in Vietnam during the Vietnam War. However, he was not diagnosed with PTSD by a VA or VA-contracted psychologist or psychiatrist. Therefore, service connection is not warranted pursuant to 38 C.F.R. § 3.304(f)(3) (2012). However, there is credible evidence of record which establishes the occurrence of the Veteran's claimed stressors and the Board concedes his claimed stressors while serving as a medic in Vietnam. Therefore, the Board finds that, to the extent that the Veteran has a current diagnosis of PTSD, that diagnosis is associated with conceded in-service stressors. 38 C.F.R. § 3.304(f) (2012). Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disorder is related to active service, regardless of whether it is diagnosed as PTSD, a depressive disorder, or both. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for a psychiatric disorder is granted. Withdrawal 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.A. § 7105 (West 2002). 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. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). In September 2011, prior to the issuance of a Board decision, the appellant withdrew the appeal on the issues of entitlement to service connection for tinnitus and peripheral neuropathy of the upper and lower extremities. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those issue on appeal and those appeals are dismissed. ORDER Service connection for a psychiatric disorder is granted. The appeal on the issue of entitlement to service connection for tinnitus is dismissed. The appeal on the issue of entitlement to service connection for peripheral neuropathy of the upper and lower extremities is dismissed. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs