Citation Nr: 1752936	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  14-07 382A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for flat feet.

2.  Entitlement to service connection for hypertension.

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

4.  Entitlement to service connection for an acquired mental disorder other than PTSD.

5.  Entitlement to service connection for alcoholism due to an acquired mental disorder other than PTSD.


REPRESENTATION

Appellant represented by:	Larry P. Knopf, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from June 1973 to October 1978. 

This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of a Department of Veterans' Affairs (VA) Regional Office (RO). An August 2011 rating decision denied the PTSD and alcoholism claims; and, a September 2012 rating decision denied the flat feet and hypertension claims.  The Veteran perfected an appeal of those determinations.

In April 2017, the Veteran testified at a Board hearing before the undersigned via video conference, with the Veteran sitting at the RO, and the undersigned sitting at the Board's Central office in Washington, DC.  A Transcript of the testimony is in the claims file,

The issues of entitlement to service connection for an acquired mental disorder other than PTSD, and alcoholism due to that mental disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  On April 7, 2017, prior to the promulgation of a decision on the appeal, on the record at the Board hearing, the Veteran withdrew his appeal of the issues of entitlement to service connection for bilateral flat feet and hypertension.

2.  The weight of the evidence of record is against a finding that the Veteran has a confirmed diagnosis of PTSD.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for bilateral flat feet have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

3. The requirements for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b) ; 38 C.F.R. §§ 3.159, 3.303, 3.304(f).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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. § 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 an appellant or by his or her authorized representative. 38 C.F.R. § 20.204.  In the present case, at the Board hearing, the Veteran affirmatively withdrew his appeal of the issues of service connection for flat feet and hypertension.  (04/07/2016 Hearing Testimony, p. 2)  In light of this action by the Veteran, the Board finds that there remain no allegations of errors of fact or law for appellate consideration as concerns those issues.  Accordingly, the Board does not have jurisdiction to review them, and the appeal of those issues will be dismissed in the Order later in this decision.

Duty to Notify and Assist

Prior to issuance of the August 2011 rating decision, via a November 2010 letter, VA provided the Veteran with notice.  Additionally, regarding the duty to assist, the Veteran's service treatment records (STRs) and VA treatment records, including the VA examination reports are in the claims file.  Neither the Veteran nor his representative has asserted that there are additional records to obtain as concerns the PTSD claim.  As such, the Board will proceed to the merits of the appeal.

Service Connection

Governing Law and Regulations

Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

There are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD in addition to those for establishing service connection generally.  See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) ("Simply put, while section 3.303 mandates that there be a link between a current disability and military service, section 3.304(f) sets forth the evidence necessary, in the context of claims for PTSD disability compensation, to establish that link.").  Entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. §§ 3.304(f), 4.125 (requiring PTSD diagnoses to conform to the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS-5 (DSM-5). The Board notes that at the time the Veteran was examined, DSM-IV was the governing directive.

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology.  See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient to establish a diagnosis 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.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).
 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Discussion

The Veteran enlisted at age 17. His claimed stressor occurred while he was based at Guantanamo, Cuba. In his written submissions, and at the hearing, he reported that one of his assigned duties was as a guard on the fence line that separated the U.S. base from Cuba. The Veteran reported further that, while performing his guard duties, he witnessed Cuban nationals killed or injured by land mines while trying to make their way over to the U.S. side. He reports that he also saw Cuban nationals who were discovered or stopped short of their goal, beaten severely by Cuban authorities. He reported and testified that he started drinking while in Cuba to deal with the stress of what he witnessed; and, by time he departed, he was an alcoholic and he was depressed. Family members submitted lay statements that described the changes in the Veteran when he returned home.

The April 2011 examination report reflects that the examiner determined that the Veteran's claimed stressor met DSM Criterion A. He sensed fear and feelings of horror and helplessness. Overall, however, the examiner determined that the Veteran's symptoms did not meet the overall criteria for a diagnosis of PTSD. Among the PTSD criteria the examiner determined were absent were a persistent reexperiencing of the claimed events, and clinically significant distress or impairment of social or occupational functioning. The examiner noted the Veteran's report of having used alcohol and drugs for over 30 years due to his experiences at Guantanamo Bay as a 17-year-old Marine; but, since becoming sober in 2010, his symptoms had abated and he is doing well. He was being treated for depression with good results at the time of the examination.  The examiner opined that none of the Veteran's current symptoms or functional impairment was associated with PTSD symptoms. The examiner diagnosed depressive disorder not otherwise specified (NOS), and also noted polysubstance dependence in sustained remission. (04/19/2011 VA Examination)

The examiner's findings and opinion are supported by the other evidence of record. The bulk of the clinicians who evaluated the Veteran primarily noted diagnoses that included depression and that the Veteran's symptoms seemed to be more consistent with bipolar disorder. (05/04/2011 Medical Treatment-Government Facility, p. 1, 13, 51, 56) In light of these factors, the Board finds the examiner's findings and opinion highly significant and assigns them significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Indeed, the Board places much weight on the 2011 VA examination report as it reflects the examiner reviewed the Veteran's medical records and took a detailed medical history, examined the Veteran, and supported the findings given. Board also notes that the Veteran and his representative did not really contest the evidence that the Veteran's symptoms do not meet the criteria for a diagnosis of PTSD. (See Hearing Transcript, p. 18)

In light of all of the above, the Board finds that the weight of the evidence is against a current finding/diagnosis of PTSD. Hence, this issue must be denied. 38 C.F.R. §§ 3.303, 3.304(f). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Service connection for PTSD is denied.


REMAND

At the hearing, the Veteran testified that he received treatment at VA facilities in the 1980s. There is no indication in the file of an attempt to obtain any records extant related to the treatment. Further, the Board notes that the examiner's nexus opinion is not clear, as to whether the Veteran's diagnosed depression is due to his experiences in Cuba. The examiner's opinion suggests that the Veteran's alcohol dependence was due to his in-service experiences, and that his depression was alcohol induced, but it is not entirely clear. The distinction is critical, as service connection for alcohol dependence is not available (unless secondary to a service-connected disability). See 38 C.F.R. § 3.301. In light of this, the Board finds additional development is in order.

Accordingly, the case is REMANDED for the following actions:

1. Obtain any records extant that are related to the Veteran for treatment at a Miami, FL VA facility in the 1980s; and, at VA facilities in Detroit, MI in 1987 or 1988. Compliance with 38 C.F.R. § 3.159(e) is to be documented in the claims file.

2. After the above is complete, regardless of whether additional records are added to the file, arrange an examination of the Veteran by an appropriate mental health examiner. Ask the examiner to opine whether there is at least a 50-percent probability that the Veteran's currently diagnosed acquired mental disorder, other than PTSD, but to include depressive disorder NOS, is causally connected to his experiences while based at Guantanamo, Cuba, or is otherwise causally connected to his active service?

If the answer to the above question is, Yes, is there is at least a 50-percent probability that the Veteran's polysubstance dependence (now in remission) is due to the currently diagnosed acquired mental disorder other than PTSD, to include depressive disorder NOS?

Informed the examiner that the lay statements of record must be considered; and, that all findings and opinions must be fully explained.

3. After the above is complete, readjudicate the remaining issues of entitlement to (1) service connection for an acquired mental disorder other than PTSD and for (2) alcoholism due to an acquired mental disorder, other than PTSD.  If the decision remains in any way adverse to the Veteran, issue him and his representative a Supplemental SOC (SSOC) and then return the case to the Board, if all is 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).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).



______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs