Citation Nr: 1337019 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-26 378A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In that decision, the RO, inter alia, granted service connection for bilateral hearing loss and assigned an initial noncompensable rating effective August 17, 2009, and denied service connection claims for tinnitus and PTSD. The Veteran's April 2010 notice of disagreement (NOD) limited his appeal to these issues. The RO in Indianapolis, Indiana, subsequently assumed jurisdiction over the case. An October 2012 RO rating decision granted service connection for tinnitus, and assigned an initial rating and effective date of award. This full grant of benefits terminated the appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ) in November 2012. A transcript of that hearing has been prepared and associated with the record on appeal. At such time, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional VA treatment records dated through November 2012 and a copy of the November 2012 Board hearing transcript. RO consideration of such additional VA treatment records was waived by the Veteran in November 2012. Id. Therefore, the Board may properly consider such evidence. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran has a current diagnosis of PTSD as a result of his combat-related experiences during his service in Vietnam. 2. On November 13, 2012, during the Veteran's Board hearing and prior to the promulgation of a decision in the appeal, he withdrew his appeal as to the issue of entitlement to an initial compensable rating for bilateral hearing loss. CONCLUSIONS OF LAW 1. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). 2. The criteria for withdrawal of the appeal of the issue of entitlement to an initial compensable rating for bilateral hearing loss are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant the Veteran's claim for service connection for PTSD is completely favorable, and the Veteran has withdrawn his claim for a compensable initial rating for bilateral hearing loss, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). PTSD The Veteran claims that he manifests PTSD as a result of combat-related experiences during the Vietnam War. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R. § 3.304(f). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b) ; 38 C.F.R. 3.304(d). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Prior to July 13, 2010, VA had generally required that, where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. The provisions of this amendment apply to applications for service connection for PTSD that are appealed to the Board on or after July 13, 2010, but have not yet been decided by such date, as is the case here. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41 ,092 (July 15, 2010). Once the claimed stressor has been verified, the Veteran's personal exposure to the event may be implied by the evidence of record. A Veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). 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). The Veteran served in the Republic of Vietnam from April 1969 to June 1970. He had a military occupational specialty (MOS) as a cannoneer serving with Battery C, 3rd Battalion, 13th Artillery, 25th Infantry Division. His awards include the Bronze Star for Meritorious Achievement in Ground Operations Against Hostile Forces. The Veteran reports being detached to a unit which engaged in direct fire support with returned enemy fire in the Tay Ninh Province. See VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)) received in November 2009. Here, the RO has obtained the Lessons Learned from the Department of Army, Headquarters, for the 25th Infantry Division Artillery which confirms that Battery C supported combat operations to Tay Ninh Base Camp in July 1969 with confirmed enemy kills. The RO has conceded the Veteran's presence during this combat operation. Given this research combined with the Veteran's award of the Bronze Medal for participating in ground operations against hostile forces, the Board finds that the Veteran's claimed combat-related stressors are corroborated. Pentecost, 16 Vet. App. 124 (2002); Suozzi, 10 Vet. App. 311 (1997). In this case, the issue at hand concerns whether the Veteran manifests PTSD as a result of his acknowledged combat-related stressors. There are differing medical opinions as to whether or not the Veteran manifests PTSD according to DSM-IV criteria. A main area of disagreement concerns whether the Veteran himself endorses sufficient symptomatology to establish a PTSD diagnosis. The Veteran initially underwent a PTSD evaluation in the VA clinic setting in November 2009 by clinical psychologist Dr. R. At that time, the Veteran reported a history of emotional, physical, and sexual abuse as a child. He also discussed his Vietnam experiences. The clinical psychologist observed that the Veteran endorsed experiencing symptoms from all three PTSD clusters (avoidance related to thinking about traumatic events), but that the Veteran was considered to have sub-threshold PTSD as his avoidance symptoms were low in frequency. The Veteran underwent VA Compensation and Pension (C&P) examination in March 2010 by a different VA clinical psychologist. Based upon interview, psychometric testing and mental status examination, this examiner provided an opinion that the Veteran endorsed sub-threshold PTSD, which did not meet the full DSM-IV criteria for a PTSD diagnosis. Thereafter, the Veteran underwent numerous one hour psychological consultations with Dr. R. Dr. R's clinic notes reflect an Axis I assessment of PTSD. By letters dated June 2010 and November 2012, Dr. R. reports treating the Veteran between September 2009 and October 2011 for PTSD with accompanying depression wherein the Veteran endorsed trauma from his combat experiences in Vietnam. Dr. R. specifically stated that the Veteran manifested symptoms in all three PTSD clusters. The Veteran's VA clinic records include group counseling sessions with a doctor in psychiatry, Dr. G. These treatment records consistently record a diagnosis of PTSD. However, clinic notes from a registered nurse reflect assessments of sub-threshold PTSD. The varying opinions reached by these examiners, to some extent, rely upon their own subjective analyses of the Veteran's report of symptomatology. Notably, the initial assessment of sub-threshold PTSD was provided by Dr. R. in November 2009 based upon a determination that the Veteran's avoidance symptoms were low in frequency. Dr. R., who subsequently evaluated the Veteran in numerous one hour consultations between September 2009 and October 2011, now directly asserts that the Veteran meets the DSM-IV criteria for a PTSD diagnosis based on his Vietnam experiences. Another highly qualified VA physician, Dr. G., also provides a PTSD diagnosis. Overall, the Board finds that the evidence as to whether the Veteran has a current diagnosis of PTSD based on his acknowledged in-service stressors is in relative equipoise - particularly given the change in diagnosis from sub-threshold PTSD to PTDS by Dr. R. who has clearly demonstrated consideration of the DSM-IV criteria. Consequently, the Board resolves all reasonable doubt in favor of the Veteran and finds that he has a current diagnosis of PTSD as a result of his combat-related experiences during his service in Vietnam. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for PTSD is warranted. Bilateral Hearing Loss On November 13, 2012, the Veteran testified at a Board hearing over which the undersigned VLJ presided. At the hearing, the Veteran indicated that he wished to withdraw from appellate consideration his claim of entitlement to an initial compensable rating for bilateral hearing loss. 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. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Board finds that the Veteran's statement indicating his intention to withdraw his appeal, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal concerning a higher initial rating for bilateral hearing loss, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim on appeal and it is dismissed. ORDER Service connection for PTSD is granted. The appeal for an initial compensable rating for bilateral hearing loss is dismissed. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs