Citation Nr: 1751888	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-03 067	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

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

2.  Entitlement to service connection for alcohol, cocaine, and cannabis abuse, to include as secondary to service-connected disability.

3.  Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability.

4.  Entitlement to service connection for diabetes mellitus, type II.

5.  Entitlement to an initial disability rating in excess of 50 percent for unspecified trauma disorder, previously rated as anxiety disorder.

6.  Entitlement to a disability rating in excess of 30 percent for residuals of an abdominal gunshot wound with colon resection, colostomy, and obstruction (abdominal gunshot wound).

7.  Entitlement to a disability rating in excess of 30 percent for a splenectomy.
8.  Entitlement to a compensable disability rating for residuals of a gunshot wound to the left flank.

9.  Entitlement to a compensable disability rating for a left forearm scar.

10.  Entitlement to a compensable disability rating for scars on the abdomen, upper flank, and left lateral back.

11.  Entitlement to an initial disability rating in excess of 60 percent for chronic renal disease.  

12.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Christopher Loiacono, Agent


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. D. Bruce, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1966 to August 1969, to include service in the Republic of Vietnam.
These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2011, September 2012, November 2013, and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office.

In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

The issues of entitlement to service connection for alcohol, cocaine, and cannabis abuse, entitlement to service connection for erectile dysfunction, entitlement to an initial disability rating in excess of 50 percent for unspecified trauma disorder, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the claims for entitlement to service connection for diabetes mellitus, type II, and entitlement to increased disability ratings for residuals of an abdominal gunshot wound, a splenectomy, residuals of a gunshot wound to the left flank, a left forearm scar, scars on the abdomen, upper flank, and left lateral back, and for chronic renal disease.  

2.  The probative, competent evidence demonstrates that the Veteran's PTSD is related to a verified in-service stressor.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal as to the issues of entitlement to service connection for diabetes mellitus, type II, and entitlement to increased disability ratings for residuals of an abdominal gunshot wound, a splenectomy, residuals of a gunshot wound to the left flank, a left forearm scar, scars on the abdomen, upper flank, and left lateral back, and for chronic renal disease, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).

2.  The criteria for entitlement to service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawals

During his May 2017 hearing, the Veteran testified that he wished to withdraw his claims for entitlement to service connection for diabetes mellitus, type II, and entitlement to increased disability ratings for residuals of an abdominal gunshot wound, a splenectomy, residuals of a gunshot wound to the left flank, a left forearm scar, scars on the abdomen, upper flank, and left lateral back, and for chronic renal disease.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  With regard to the issues withdrawn by the Veteran, there remain no allegations of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed

PTSD

The Veteran asserts that he has PTSD has a result of being shot by a fellow service member during active duty.

Service connection may be established 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.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) (2016) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
	
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the    in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2016), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor.  

The record reflects a diagnosis of PTSD during the pendency of the appeal in accordance with 38 C.F.R. § 4.125.  In that regard, the Board notes that VA examiners evaluated the Veteran in June 2011, November 2013, and October 2015 and did not diagnose PTSD, but, rather, found that other diagnoses better described the Veteran's symptomatology, including symptoms stemming from the in-service shooting.  Conversely, in February 2017, the Veteran underwent evaluation by a private psychologist, D.P., who found that the Veteran met the diagnostic criteria for PTSD.  Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds that the evidence establishes a current diagnosis of PTSD for purposes of determining service connection.  

Furthermore, the record confirms that the Veteran was, in fact, shot by a fellow service member during active duty; service connection is in effect for injuries stemming from the incident.  As such, there is credible evidence of an in-service stressor.

Accordingly, the remaining question for resolution is whether the evidence establishes a medical link between the Veteran's PTSD and the in-service stressor.  In that regard, in February 2017 D.P. described the Veteran's symptoms stemming from the in-service stressor, including hypervigilance, hyperarousal, nightmares, avoidance, intrusive thoughts, and re-experiencing of the event, as well as anxiety and excessive worry, and related such symptoms to the current PTSD diagnosis.  

Resolving the benefit of the doubt in the Veteran's favor, the Board finds the evidence establishes that he has PTSD related to an in-service stressor.  Accordingly, service connection for PTSD is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).






















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ORDER

The appeal as to the issue of entitlement to service connection for diabetes mellitus, type II, is dismissed.

The appeal as to the issue of entitlement to a disability rating in excess of 30 percent for residuals of an abdominal gunshot wound is dismissed.

The appeal as to the issue of entitlement to a disability rating in excess of 30 percent for a splenectomy is dismissed.

The appeal as to the issue of entitlement to a compensable disability rating for residuals of a gunshot wound to the left flank is dismissed.

The appeal as to the issue of entitlement to a compensable disability rating for a left forearm scar is dismissed.

The appeal as to the issue of entitlement to a compensable disability rating for scars of the abdomen, upper flank, and left lateral back is dismissed.

The appeal as to the issue of entitlement to an initial disability rating in excess of 60 percent for chronic renal disease is dismissed.

Entitlement to service connection for PTSD is granted.  


REMAND

While further delay is regrettable, the Board finds additional development is necessary before a decision may be rendered in the remaining issues on appeal.  

The Veteran has asserted that his diagnosed alcohol, cocaine, and cannabis dependencies are related to his service-connected psychiatric disabilities.  Various VA examiners have opined that the Veteran's substance abuse started prior to service and was not aggravated by his previously service-connected anxiety disorder, but have not properly addressed whether such abuse may be aggravated by his now service-connected PTSD.  Accordingly, an addendum opinion should be obtained.   

Furthermore, the Board notes that the Veteran underwent VA examination with respect to his claim for entitlement to service connection for erectile dysfunction in February 2014.  The VA examiner opined that the Veteran's erectile dysfunction was likely aggravated by his substance abuse; as such, this issue is inextricably intertwined with the issue of entitlement to service connection for alcohol, cocaine, and cannabis abuse.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).  

Finally, while the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in May 2016, the record does not reflect that any action was taken to obtain relevant information from the Veteran's former employers.  Accordingly, upon remand, such action should be taken.  As this development may shed light on occupational impairment caused by the Veteran's service-connected unspecified trauma disorder, the claim for an increased rating for that disability must also be remanded.  Of note, given the grant of service connection for PTSD, rating of the Veteran's psychiatric disorders will be conducted by the AOJ prior to any decision by the Board.  

Accordingly, the case is REMANDED for the following actions:

1.  Send each employer listed in the Veteran's VA Form 21-8940 a VA Form 21-4192 to complete and return to VA.

2.  Forward the claims file to an appropriate VA examiner for an addendum opinion regarding the Veteran's claim for entitlement to service connection for alcohol, cocaine, and cannabis abuse.  If a new examination is deemed necessary to respond to the request, one should be scheduled.  

Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's alcohol, cocaine, and/or cannabis abuse has been worsened beyond the normal progression (versus temporary flare-up of symptoms) as a result of the Veteran's service-connected psychiatric disabilities.  If the examiner finds any substance abuse disorder has been worsened beyond the natural progression (aggravated), the examiner should attempt to quantify the degree of aggravation beyond the baseline level of disability that is due to service-connected disability.  The examiner should explain the reasoning for any opinion provided.

3.  After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).




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These claims 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 2014).




______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs