Citation Nr: 1342647 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 10-33 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major recurrent depression with psychotic features and major depressive disorder with psychotic features. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for diabetes. REPRESENTATION Veteran represented by: Irene Bob, Representative WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his son ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from March 1956 to October 1959 and December 1959 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. While the Veteran originally filed claims for depression and 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 (2009). Thus, the Veteran's claim encompasses his diagnoses of severe major recurrent depression with psychotic features and major depressive disorder with psychotic features during the appeal period. In May 2012, the Veteran, his spouse, and his son testified before the undersigned Veterans Law Judge at a video-conference hearing. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. On May 10, 2012, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal of the issue of entitlement to service connection for diabetes. 2. The evidence shows that an acquired psychiatric disorder, diagnosed as major recurrent depression with psychotic features and major depressive disorder with psychotic features had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for diabetes have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013). 2. Major recurrent depression with psychotic features and major depressive disorder with psychotic features, was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claim 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 (2013). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran, through testimony at his May 2012 hearing, has withdrawn the appeal of the issue of entitlement to service connection for diabetes. Hence, there remain no allegations of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review this appeal and it is dismissed. II. Service Connection Claim 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). The record shows the Veteran has a current disability of acquired psychiatric disorder, diagnosed as major recurrent depression with psychotic features and major depressive disorder with psychotic features. The Veteran and his spouse have competently and credibly testified to a change in the Veteran's behavior following his Other Than Honorable discharge from service in 1963. Service personnel records include the following statement, signed by the Veteran in October 1963: "I understand...that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Service or the character of discharge therefrom may have bearing." The Veteran's character of discharge was not corrected to Honorable until February 1985. The Veteran has submitted consistent lay evidence and testimony of the negative effect this type of discharge had on his ability to secure work, his shame and concealment of the discharge from his family, the loss of his planned career, and his psyche in general. VA treatment records show that the Veteran reported to physicians that he felt his life was derailed or "drawn off track" by the character and circumstances of the discharge. He reports the onset of psychiatric symptoms such as audio and visual hallucinations and paranoia as early as the 1960s, and connected them to his military discharge. He testified that the symptoms have been recurrent since that time. The Veteran and his spouse are competent to report the onset and recurrence of his psychiatric symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Board finds them both to be credible, as their testimony and lay evidence are consistent both internally and with the other evidence of record. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Veteran and his spouse competently, credibly, and consistently described recurrent symptoms since the time of his discharge that support the later diagnosis by VA medical personnel. There is no evidence of record in conflict with the lay evidence. As such, service connection is warranted. ORDER The appeal of the issue of entitlement to service connection for diabetes is dismissed. Service connection for major recurrent depression with psychotic features and major depressive disorder with psychotic features is granted. REMAND The Veteran seeks service connection for hypertension. For the reasons that follow, his claim must be remanded. At the Veteran's hearing, he identified relevant private and VA treatment records that appear to be outstanding. Specifically, he identified treatment records from Kaiser Permanente dated from 1980 to the present, but only records dated from January 2002 to March 2009 have been requested from Kaiser. He also stated that he has been treated at the Oakland VA Medical Center (VAMC) since 1980, but the only treatment records obtained are dated October 2005 to June 2010. Moreover, the earliest obtained VA treatment record, dated October 2005, clearly refers to prior VA treatment. It appears no effort has been made to obtain these records. Records of his VA treatment are constructively before VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the state of the record, the Board finds that the claims must be remanded to associate those records. The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record shows evidence of a current disability of hypertension. The Veteran believes that his high blood pressure began during a traumatic and painful dental procedure in service. His spouse has testified that the Veteran contemporaneously informed her of this incident. The Veteran contends that, since this incident, he has high blood pressure during times of pain and stress, eventually leading to his current diagnosis of hypertension. There is no medical opinion of record addressing the etiology of his hypertension. Accordingly, the Board finds that on remand a VA examination should be provided to address whether the current disability is related to service. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain VA treatment records, physically or electronically, from the Oakland VAMC dated from January 1980 to October 2005, and since June 2010 that are relevant to the Veteran's hypertension. 2. After obtaining any necessary authorization from the Veteran, request treatment records from Kaiser Permanente dated from January 1980 to December 2001 and since March 2009. If the records are not available, physically or electronically, the claims file should be annotated to reflect such and the Veteran should be notified. 3. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the onset and/or recurrence of his hypertension symptoms during and/or since service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset, and etiology of his hypertension. The claims file should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether the Veteran's hypertension at least as likely as not had its onset during service or is otherwise related to service. The rationale for all opinions expressed should be set forth in a legible report. 5. Then readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs