Citation Nr: 1329368 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-35 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder, not otherwise specified (NOS). 2. Entitlement to service connection for residuals of a right ankle fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from October 1965 through October 1967, to include service in Vietnam from January through October of 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A timely Notice of Disagreement (NOD) was received from the Veteran in July 2007. After a Statement of the Case (SOC) was issued in August 2009, the Veteran perfected his appeal in September 2009, via VA Form 9 substantive appeal. In his VA Form 9, the Veteran requested that a Board hearing be scheduled in this case. Accordingly, a Travel Board hearing was scheduled to take place in May 2013 at the Cleveland RO and notice that effect was mailed to the Veteran in March 2013. The Veteran did not appear at the scheduled hearing and neither he nor his representative has stated any cause for his failure to appear or requested a new hearing. FINDINGS OF FACT 1. The Veteran has an anxiety disorder, NOS, that has been shown as being due to his active duty service. 2. In a June 2011 statement, the Veteran stated that he wished to withdraw his appeal of the denial of service connection for residuals of a right ankle fracture. CONCLUSIONS OF LAW 1. The criteria for service connection for anxiety disorder, NOS have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for a withdrawal of the Veteran's substantive appeal of the denial of service connection for residuals of a right ankle fracture have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issue remaining on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. II. Acquired Psychiatric Disorder, to Include PTSD and Anxiety Disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection for PTSD specifically 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). As noted briefly above, the appeal as to this issue stems from the RO's April 2007 denial of service connection for PTSD. As bases for its denial, the RO determined that the evidence at that time did not indicate a current PTSD diagnosis, the occurrence of an in-service stressor, or a link between diagnosed PTSD and the claimed and corroborated stressor. In short, the RO determined that the evidence did not meet any of the elements for service connection for PTSD. Indeed, careful review of the evidence in the record reflects that the Veteran has not received a PTSD diagnosis. Post-service treatment records, which pertain to VA and private treatment received by the Veteran from 1996 through 2013, reflect that he did receive private psychiatric treatment from Dr. C.C.C. for diagnosed anxiety and was prescribed Valium over that period. During a February 2006 VA initial psychiatric examination, the Veteran reported symptoms of sadness and depression. Interestingly, and seemingly inconsistent with his assertion that he has PTSD, he described his service in Vietnam as a "good experience." He also described having good and enriching relationships with his five siblings, four children, and seven grandchildren whom he often spent time with and enjoyed. A multi-axis diagnosis rendered at that time included a provisional Axis I diagnosis of depression. He was referred for further evaluation and treatment by a VA psychiatrist. In an April 2006 letter, Dr. C.C.C. reported that, according to the Veteran, he had previously received treatment for anxiety from a Dr. A. shortly after his separation from service, and that he had been taking Valium for over 30 years. Again, although the letter appears to indicate a longstanding and ongoing diagnosis of anxiety, it does not suggest a PTSD diagnosis. In June 2006, the Veteran met with a VA psychiatrist on referral. At that time, he reported that he had been a "nervous person" for over 30 years and that he had been taking Valium over that period during periods of stress or "feeling down." Significantly, he reported the social stressor of the recent passing of his spouse due to lung cancer in February 2006. Once again, in describing his experience in Vietnam, he stated that he did not feel that he had a bad experience during his deployment. A mental status examination was grossly normal; however, the Veteran did report that he missed his late spouse. A multi-axis diagnosis included an Axis I diagnosis of generalized anxiety disorder. Subsequent PTSD screens performed during VA treatment in October 2006 and December 2012 were negative. During a July 2011 VA examination, the Veteran denied any actual combat experience during his Vietnam service; however, did state for the first time that he witnessed deaths and injuries. He recalled further that he frequently had to sleep in bunkers due to nighttime enemy mortar attacks. He continued to report that he was diagnosed with anxiety 30 years ago by his primary care physician and that he had been taking Valium over that entire period. He stated that, at present, he was taking Valium two or three times per week on an as needed basis. Once again, the Veteran reported having good relationships with his family and friends, and that he attended weekly church services. He also reported that he enjoyed leisure activities such as watching car racing and high school sports. A mental status examination revealed sad affect, slight irritability, and restricted range when the topic of the examination was the recent death of his son. The examination was otherwise grossly normal. A multi-axis diagnosis rendered by the examiner included Axis I diagnoses of bereavement and anxiety disorder, not otherwise specified (NOS). Previous diagnoses in the record of generalized anxiety disorder were apparently ruled out by the examiner. In discussing the rendered diagnoses, the examiner noted that the Veteran did report some PTSD-related symptoms. Although the examiner also observed that the Veteran did report military stressors, the examiner concluded that the Veteran did not meet the other DSM-IV criteria for PTSD. Alternatively, the examiner concluded that the Veteran appeared to meet the diagnostic criteria for anxiety disorder. To the extent that the Veteran was reporting the military stressors noted above, the examiner opined that it is at least as likely as not that the claimed stressors and his fear of hostile military activity during service would be risk factors that rendered the Veteran vulnerable to developing an anxiety disorder. In that regard, the examiner appears to conclude that the Veteran's anxiety disorder is as likely as not related to his active duty service. In view of the foregoing, the Veteran's claim is lacking the essential element that the evidence show a current PTSD diagnosis. On that ground alone, the Veteran is not entitled to service connection for PTSD. In reaching this conclusion, the Board does not make any findings as to the occurrence of the Veteran's reported in-service stressors or as to any purported relationship between PTSD and the reported stressors. The Board also acknowledges that under Clemons v. Shinseki, 23 Vet. App. 1 (2009), where a veteran specifically requests service connection for PTSD but the medical record includes other psychiatric diagnoses, the claim may not be construed narrowly as a claim for service connection for PTSD only, but rather, should be considered more broadly as a claim for a psychiatric disorder. Mindful of this holding, the Board has expanded the issue on appeal to encompass a claim for service connection for other acquired psychiatric disabilities shown in the record. Subject to the foregoing, the Board notes that the Veteran's service personnel records corroborate the Veteran's service in Vietnam from January through October of 1967. An Enlisted Qualification Record shows that the Veteran was attached to an artillery unit and assigned the duties of a Supply Clerk. Although the record does not reflect or otherwise suggest combat involvement, or, corroborate the Veteran's claims that he was subject to enemy mortar attacks, the Board does find that the character and nature of the Veteran's Vietnam service is consistent with the stressors reported during his July 2011 VA examination. As noted above, based upon the Veteran's reported history and mental status examination, the July 2011 VA examiner diagnosed anxiety disorder, NOS, and, opined that the diagnosed disorder was likely related to his in-service experiences. This opinion appears to be based upon a complete and accurate understanding of the Veteran's history and application of the diagnostic criteria under the DSM-IV, and further, is not rebutted by any contrary evidence. Under the circumstances, the VA examiner's July 2011 diagnosis and opinion is highly probative. In view of the foregoing, the Veteran is entitled to service connection for anxiety disorder, NOS. To that extent, this appeal is granted. III. Residuals of Right Ankle Fracture An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b) (2012). In this case, the Veteran disagreed with the denial of service connection for residuals of a right ankle fracture and perfected an appeal as to that issue. In a June 2011 VA Form 21-4138 Statement in Support of Claim, the Veteran expressed that he wished to withdraw his appeal of the denial of service connection for his claimed right ankle disability. The June 2011 statement qualifies as a valid withdrawal of the issues on appeal. See 38 C.F.R. § 20.204. Therefore, in light of the Veteran's withdrawal of his appeal of the denial of service connection for residuals of a right ankle fracture, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the appeal of the denial of service connection for that disability will be dismissed. ORDER Service connection for anxiety disorder, NOS is granted. The appeal of the denial of service connection for residuals of a right ankle fracture is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs