Citation Nr: 1746956	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  15-01 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD), with depression.  

2.  Entitlement to service connection for headaches.  

3.  Entitlement to a total rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Brian Hill, Attorney


ATTORNEY FOR THE BOARD

C. B. Kass, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty from February 1974 to September 1975.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The Veteran had requested a Board videoconference hearing in his January 2015 VA Form 9.  In September 2017, the Veteran's representative submitted a motion requesting that the Veteran's appeal be advanced on the docket, and for consideration under the prehearing conference program.  The Board granted the motion to review the case in the prehearing conference program and is herein granting the requested benefit.  As such, the Veteran's hearing request is deemed withdrawn.  38 C.F.R. § 20.704(e) (2016).

The Board has re-characterized the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) to include major depressive disorder, pursuant to the case of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).


FINDINGS OF FACT

1.  Resolving all doubt in the Veteran's favor, the Veteran's PTSD is related to service

2.  In September 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal

CONCLUSIONS OF LAW

1.  The criteria to establish service connection for PTSD are met.  38 U.S.C.A. §§1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016).  

2.  The criteria for withdrawal of the headaches appeal by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

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.  In the present case, the Veteran withdrew the appeal for the above claims via September 2017 correspondence from his attorney.  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 regarding the above claims and they are dismissed.


Service Connection - PTSD 

The Veteran is seeking service connection for PTSD due to the stress of being falsely accused and imprisoned during service.  The Board agrees.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

To establish entitlement to service connection for PTSD, there must be:  (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires it be diagnosed in accordance with the DSM; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. §3.304(f).  

The Board finds service connection is warranted.  First, the Veteran has a current diagnosis for PTSD.  Second, the Board acknowledges that the Veteran's service treatment records support the Veteran's statement of false accusations and inhumane conditions while imprisoned in service.  Finally, there is medical evidence of a link between current symptomatology and the claimed in-service stressor.  

The evidence shows the Veteran was imprisoned during service.  His medical records indicate that the trauma of that imprisonment manifests in anxiety, depression, anhedonia, irritability, anger, sleep problems, nightmares, flashbacks, and suicidal ideation.  In April 2012, Dr. N.O determined that it was at least as likely that the Veteran's PTSD was linked to the stress of imprisonment during service.  In August 2012, Dr. J.R.R.I. certified that the Veteran was being treated for major depression with psychotic features and PTSD due the stress of being falsely charged and his imprisonment during service.  In July 2013, a VA examiner diagnosed depressive disorder NOS and not PTSD.  The examiner stated that the Veteran's unemployment and economic situation caused him to be depressed and stated that the Veteran's disability was less likely than not related to service.  However, in September 2014, Dr. J.M. concluded the Veteran's PTSD was directly related to his incarceration in service.  Further, he explained that the July 2013 VA examiner's opinion was backwards because the Veteran's PTSD and concomitant depression caused his unemployment.  Accordingly, the examiner opined that the Veteran satisfies the criteria for service connection for PTSD.

Upon review of the foregoing, the evidence is at least in equipoise.  Thus, the benefit-of-the-doubt doctrine is for application, and resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for PTSD is granted.  38 U.S.C.A. § 51-7 (b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for PTSD is granted.  

The appeal for headaches is dismissed.  



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs