Citation Nr: 1322898 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-00 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder, not otherwise specified (NOS). 2. Entitlement to a higher rating for right shoulder strain. 3. Entitlement to a higher rating for left shoulder strain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from August 2002 to November 2002, June 2003 to December 2003, and April 2006 to May 2007, including service in Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of a Regional Office (RO) that denied service connection for psychiatric disability and granted service connection for left shoulder strain and right shoulder strain and assigned initial noncompensable evaluations, effective February 27, 2008. In a September 2010 rating decision, the RO increased the evaluation of the Veteran's left shoulder strain and right shoulder strain to 10 percent each, effective January 14, 2010. While the disability claimed by the Veteran is PTSD, claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2010). Thus, the Veteran's claim also encompasses his diagnosis of anxiety disorder, NOS, during the appeal period. In his December 2009 substantive appeal, the Veteran requested a hearing before a Decision Review Officer. In June 2010, the Veteran and his representative participated in an informal conference in lieu of a hearing. FINDINGS OF FACT 1. PTSD with anxiety disorder, NOS, had its onset in service. 2. On September 24, 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, requesting a withdrawal of the appeal of the issue of entitlement to a higher rating for right shoulder strain. 3. On September 24, 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, requesting a withdrawal of the appeal of the issue of entitlement to a higher rating for left shoulder strain. CONCLUSIONS OF LAW 1. PTSD with anxiety disorder, NOS, was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). 2. The criteria for withdrawal of an appeal of the issue of entitlement to a higher rating for right shoulder strain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of the appeal of the issues of entitlement to a higher rating for left shoulder strain 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 CONCLUSIONS I. Service connection claim In this decision, the Board grants service connection for PTSD with anxiety disorder, NOS, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) The claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (2) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). In this case, the Veteran asserts that while serving in Kandahar, Afghanistan as an infantryman he was exposed to IED attacks, ambushes, fire fights on convoys, dead bodies, nightly rocket attacks on base, and had to fire on the enemy. His primary jobs were company armorer and assisting the supply sergeant. He was out almost every day on missions, including patrols and convoys, and volunteered to fly to other bases to participate in these activities with other units. He contends that his current psychiatric symptoms and diagnoses result from these combat-related stressors. Service personnel records verify that the Veteran served in Afghanistan as an infantryman for a year. His Army Commendation Medal certificate states he served in a forward deployed combat zone. Moreover, a June 2008 VA memorandum states that he has confirmed evidence of combat. Therefore, the places, types, and circumstances of the Veteran's service are consistent with his report of stressors in Afghanistan. In March 2009, VA treatment notes show that the Veteran was hospitalized and his discharge diagnosis was PTSD. In the same month, a VA psychologist diagnosed the Veteran with PTSD. He continued to be treated for PTSD by VA psychologists through October 2009. In an April 2009 treatment note, his treating VA psychologist created a Mental Health Treatment Plan of cognitive processing therapy for combat-related PTSD. Throughout the VA treatment records, the Veteran's current psychiatric diagnosis is related to traumatic events the Veteran experienced during service. As such, the Board finds that the Veteran's testimony establishes the occurrence of his claimed stressor. See 38 C.F.R. § 3.304(f)(3). The Board acknowledges that two VA examiners diagnosed anxiety disorder, NOS, with sub-threshold (or sub-clinical) PTSD symptoms. The August 2008 examiner stated that the Veteran's primary psychiatric symptoms were "secondary to his combat service in Afghanistan." The July 2010 examiner did not opine as to whether the Veteran's symptoms were due to or caused by military experiences. As the VA psychologist's treatment notes establish a diagnosis of PTSD and a link between the current symptomatology and the Veteran's stressors, service connection for PTSD is warranted. II. Withdrawal of Appeals The Board may dismiss any appeal that 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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative via letter received September 24, 2010, has withdrawn the appeals of the issues of entitlement to higher ratings for left and right shoulder strain. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. ORDER Service connection for PTSD and anxiety disorder, NOS, is granted. The appeal of the issue of entitlement to a higher rating for right shoulder strain is dismissed. The appeal of the issue of entitlement to a higher rating for left shoulder strain is dismissed. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs