Citation Nr: 18142314 Decision Date: 10/16/18 Archive Date: 10/15/18 DOCKET NO. 09-24 535 DATE: October 16, 2018 ORDER The claim for entitlement to service connection for a right shoulder condition is dismissed. The claim for entitlement to service connection for motion sickness is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for obstructive sleep apnea, as secondary to PTSD, is granted. FINDINGS OF FACT 1. In a letter dated in January 2017 and submitted in July 2018, the Veteran stated he wished to withdraw his claim for entitlement to service connection for a right shoulder condition. 2. In a letter dated in January 2017 and submitted in July 2018, the Veteran stated he wished to withdraw his claim for entitlement to service connection for motion sickness. 3. The Veteran’s diagnosed PTSD is related to his documented fear of hostile military or terrorist activity during active service. 4. The Veteran’s obstructive sleep apnea is proximately due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a right shoulder condition. 38 U.S.C. § 7105 (b), (d) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a right shoulder condition. 38 U.S.C. § 7105 (b), (d) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 4. The criteria for secondary service connection for obstructive sleep apnea as secondary to PTSD are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2002 to February 2003 as a federally activated member of the Puerto Rico Amy National Guard. He was deployed to Kuwait as part of Operation Desert Spring. Service Connection 1. Entitlement to service connection for a right shoulder condition Under 38 U.S.C. § 7105 (2017), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In July 2018 the Board received a letter from the Veteran stating “I…wish to withdraw the following claims: Entitlement to service connection for right shoulder condition.” There remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. The claim for entitlement to service connection for motion sickness Under 38 U.S.C. § 7105 (2017), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In July 2018 the Board received a letter from the Veteran stating “I…wish to withdraw the following claims: …Entitlement to service connection for motion sickness.” There remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that his diagnosed PTSD was caused by his in-service fear of hostile military or terrorist activity. The Board concludes that the Veteran has a current diagnosis of PTSD that is related to his in-service stressor of seeing an unknown car disregard protocol in the area he was guarding and nearly shooting people who turned out to be friendly. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has consistently described his primary stressor as an incident that occurred when he was assigned to guard a perimeter in Kuwait. He described a vehicle approaching his position without following the standard protocol, causing him to come very close to shooting at the vehicle. The Veteran’s commanding officer did not give the order to shoot and the occupants turned out to be friendly. The Veteran submitted two detailed lay statements from service members who were present, including a specific date of this event and a recollection of the Veteran staying frozen with his finger near the trigger and breaking down in tears a few minutes later. The Board is satisfied that these statements are credible and that the stressor occurred as claimed during the Veteran’s active service. A private January 2018 psychiatric examination shows the Veteran has a current diagnosis of PTSD, and the January 2018 private examiner opined that the Veteran’s PTSD is at least as likely as not related to an in-service stressor as reported by the Veteran and verified by two eye witness statements. The rationale was that the Veteran had no psychiatric conditions before entering active service and has a current diagnosis of PTSD with symptoms including recurrent nightmares of his reported in-service stressor and no history of another trauma that could have caused his condition. An April 2016 VA examiner diagnosed the Veteran with major depressive disorder and opined that while it may have developed during the Veteran’s active duty for training in the National Guard, it was less likely than not related to his active service. This examiner was asked to address an April 2007 diagnosis of PTSD with auditory hallucinations and a VA psychiatrist’s subsequent October 2008 opinion that the Veteran suffered from PTSD and was at risk of relapsing into more intense symptoms if he remained in the National Guard. The April 2016 VA examiner acknowledged this but stated that the evidence never supported a DSM 5 diagnosis of PTSD so no further opinion could be offered without resorting to speculation. The January 2018 private examiner diagnosed the Veteran with PTSD, citing previous medical records and lay statements to explain how the Veteran met each of the criteria for PTSD under both DSM 4 and DSM 5. The January 2018 examiner explained that delayed onset of symptoms after experiencing a stressor is consistent with a diagnosis of PTSD, and further reviewed post service treatment records with other diagnoses and explained how the symptoms recorded in these treatment records were more consistent with a diagnosis of PTSD. The Board finds that the January 2018 private examiner sufficiently considered and addressed conflicting evidence, including the opinion of the April 2016 VA examiner, and that the January 2018 examiner’s opinion is the most probative evidence of record. Therefore, the Board finds that the preponderance of the evidence supports the Veteran’s claim that he has PTSD related to an in-service fear of hostile military or terrorist activity and service connection is warranted for this condition. 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability Post-service treatment records show the Veteran has a current diagnosis of obstructive sleep apnea, and January 2018 private examiner opined that it is at least as likely as not proximately due to or the result of his service-connected PTSD. The examiner noted that the Veteran’s body type was not one typically associated with developing sleep apnea and provided medical articles in support of the causal relationship between sleep apnea and PTSD. A September 2011 VA examination determined that the Veteran’s sleep apnea was less likely than not related to environmental exposures in service but offered no opinion as to its relationship to the Veteran’s mental health. The Board therefore finds that the balance of the evidence is in favor of the Veteran’s claim that his sleep apnea was caused by his service-connected PTSD and that service connection on a secondary basis is warranted for this condition. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel