Citation Nr: 1333457 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-33 058 ) 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, claimed as depression/anxiety/mood disorder, to include as secondary to service-connected left orchiectomy. 2. Entitlement to service connection for an upper lobectomy due to carcinoma. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active military service from November 1970 to November 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2013, the Veteran and his spouse presented testimony at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. The Board notes that the Veteran originally filed a claim for a "nervous condition" in June 1975, which was addressed in a January 1976 rating decision. Generally, once an issue is finally denied, it may be reopened upon the submission of new and material evidence. However, after the January 1976 rating decision, relevant official service department records that existed but had not been associated with the claims file were received. Specifically, the RO later obtained the Veteran's service personnel records, which confirmed that he was subject to several disciplinary actions during service after his left orchiectomy. Accordingly, the Board will reconsider the claim on the merits. See 38 C.F.R. § 3.156(c)(i) (2013). FINDINGS OF FACT 1. In July 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew the claim for entitlement to service connection for an upper lobectomy due to carcinoma. 2. Resolving doubt in the Veteran's favor, an acquired psychiatric disorder, manifested by symptoms including anxiety and depression and diagnosed as varying psychiatric disabilities throughout the appeal period, is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for an upper lobectomy due to carcinoma have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as depression/anxiety/mood disorder, have been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal 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. In the present case, in July 2012, the Veteran, through his representative, submitted a letter stating his intent to withdraw the appeal of the claim for entitlement to service connection for an upper lobectomy due to carcinoma. The Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. II. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the adjudication of the claim for service connection for an acquired psychiatric disorder given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grant of the benefit sought, any error in notice or assistance is harmless. III. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2013). After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as depression/anxiety/mood disorder, have been met. As an initial matter, the evidence establishes a current disability during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). The record reflects numerous diagnoses manifested by the Veteran's psychiatric symptoms, which include depression and anxiety. These diagnoses include, but are not specifically limited to, dysthymic disorder, depression, major depressive disorder, bipolar disorder, generalized anxiety, mood disorder, and somatization disorder. Given these diagnoses, a current chronic psychiatric disability based on his claimed symptoms has been demonstrated. Turning to the next element, that of in-service incurrence or aggravation of a disease or injury, the Board notes that the Veteran experienced a left orchiectomy in service. In fact, service connection for this disability was established in a January 1976 rating decision. The Veteran claims that, as a result of this procedure, he was subjected to ridicule and embarrassment in service. See Hearing Transcript at p. 7. Moreover, as a result of being called derogatory names based on the orchiectomy, he stated he became depressed and that he was involved in several fights during service. Id. The Board notes that the Veteran is competent to describe his feelings in service, and that his statements are consistent with other evidence of record, including his service personnel records which show that he was subjected to disciplinary actions for breach of the peace and battery in July 1974 following his 1972 orchiectomy. Having determined that the Veteran has a current psychiatric disability and that he experienced symptoms of depression-and presumptively of anxiety neurosis-in service, the Board now turns to the remaining element of service-connection, that of a nexus between the present disability and service. In this case, there is ample competent evidence of record that affirmatively establishes a nexus between his current complaints and service. In this regard, the Veteran's wife, who is a registered nurse, submitted a July 2008 statement indicating that she believed the Veteran self-medicated himself with alcohol in the years following service to treat his depression stemming from the loss of a testicle at the young age of 19. Additionally, November 2007 and January 2008 VA treatment records reflect a diagnosis of a "mood [disorder] due to testicular torsion," and especially probative are the positive opinions provided by the Veteran's VA Advanced Registered Nurse Practitioner (ARNP) in February 2008 and March 2008. These opinions provided that the Veteran suffers from "a mood disorder that can be linked to . . . [a lost [] testicle due to testicular torsion." It was explained that the Veteran was often and ridiculed and belittled in service because of his testicle, and this body image distortion led to depression and withdrawal. The ARNP concluded that his current depression is "related to his physical problems, one of which is the absence of a testicle." The Board acknowledges that a negative opinion was provided as a result of the Veteran's August 2008 VA psychological examination; the VA examiner determined that "it is extremely unlikely that his orchiectomy at age 19 by itself is responsible for the patient's current psychiatric symptoms or disability." (Emphasis added). However, the examiner conceded both that a mood disorder started in the Veteran's early 20s (which is during service) and that the "chronic course of his depressive symptoms with episodic exacerbations gradually getting worse over the course of his adult life is utterly consist[e]nt with major depressive disorder." Moreover, the examiner also stated that the "patient also has a history of hypogonadism and his currently receiving testosterone replacement[, and t]estosterone deficiency contributes to depression and mood instability," which suggests that his psychiatric symptoms may also have been aggravated by treatment related to his service-connected disability. Regardless of the fact that the VA examiner ultimately concluded that his orchiectomy alone is not responsible for his current psychiatric symptoms or disability, it certainly appears that the VA examiner considered it to have been contributing cause to the initial depression that began in service and a possible aggravating factor for depression and mood instability after service. The Board has considered remanding this case for clarification. However, there is no need to do so here because the Board can find no adequate basis to reject the numerous other positive nexus opinions of record, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the third element of a nexus to service has sufficiently been demonstrated by the evidence in this case. Given the diagnoses rendered during the appeal period and the favorable nexus evidence of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the Veteran's service-connection claim for an acquired psychiatric disorder, claimed as depression/anxiety/mood disorder, is granted. ORDER Service connection for an upper lobectomy due to carcinoma is dismissed. Service connection for an acquired psychiatric disorder, claimed as depression/anxiety/mood disorder, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs