Citation Nr: 18143638 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-07 378 DATE: October 19, 2018 ORDER The appeal of the issue of entitlement to service connection for unspecified stomach problems is dismissed. The appeal of the issue of entitlement to service connection for skin rash is dismissed. The appeal of the issue of entitlement to service connection for bilateral shoulder arthritis is dismissed. The appeal of the issue of entitlement to service connection for removal of sweat glands is dismissed. The appeal of the issue of entitlement to service connection for esophageal condition is dismissed. The appeal of the issue of entitlement to service connection for hemorrhoids is dismissed. The appeal of the issue of entitlement to service connection for hypertension is dismissed. The appeal of the issue of entitlement to service connection for respiratory condition is dismissed. Service connection for major depressive disorder is granted. Service connection for headaches secondary to major depressive disorder is granted. FINDINGS OF FACT 1. In September 2018, prior to the promulgation of a decision in the appeal, the Board received a statement from the Appellant’s representative stating the Veteran’s desire to withdraw claims on appeal. Specifically, he indicated he wished to withdraw service connection claims for bilateral shoulder arthritis, unspecified stomach problems, skin rash, removal of sweat glands, esophageal condition, hypertension, hemorrhoids, and respiratory condition. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s major depressive disorder is related to his active service. 3. Resolving all doubt in the Veteran’s favor, the most probative evidence of record demonstrates that the Veteran’s headaches are related to or aggravated by his now service-connected depression. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issues of entitlement to service connection for bilateral shoulder arthritis, unspecified stomach problems, skin rash, removal of sweat glands, esophageal condition, hypertension, hemorrhoids, and respiratory condition, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Marine Corps from November 1978 to February 1982. This matter is on appeal to the Board of Veterans’ Appeals (Board) from June 2014 and June 2015 rating decisions of a regional office of the Department of Veterans Affairs (VA). 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 the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, by a statement submitted in September 2018, the Veteran, through his representative, stated he wished to withdraw the appeals as to the issues of entitlement to service connection for bilateral shoulder arthritis, unspecified stomach problems, skin rash, removal of sweat glands, esophageal condition, hypertension, hemorrhoids, and respiratory condition. This was done in writing and clearly identified the issues withdrawn from the appeal. See Correspondence dated September 25, 2018. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to the specified matters. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and it is therefore dismissed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires competent 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310(a). Establishing service connection on a secondary basis requires evidence showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Major Depressive Disorder Given the competent medical evidence of record and lay statements, the Board finds that service connection for major depressive disorder is warranted. In so concluding, the Board finds highly probative the April 2017 medical opinion from the Veteran’s private psychologist, H.H.G., Ph.D., who after clinical evaluation and review of the claims file opined that the Veteran’s “major depressive disorder more likely than not began in military service and has continued uninterrupted to the present.” See Mental Disorders Disability Benefits Questionnaire (DBQ) and Medical Opinion dated April 2017; see also Appellant’s Brief dated August 2017. In support of her conclusion, the psychologist cited to the Veteran’s service treatment records and post-service VA treatment records reflecting the Veteran’s symptoms of auditory and visual hallucinations, sleep impairment, and panic attacks. The psychologist based her opinion on her knowledge of the Veteran’s medical history, ongoing symptomatology, lay statements of record, and medical journal articles to support the finding that the Veteran’s symptoms of depressive disorder manifested in service and is related to active service. Id. The record also reflects lay statements from the Veteran’s mother, father, and longtime friends describing their competent and credible observations endorsing the Veteran’s symptoms of major depressive disorder since his return home from military service, and their experiences with him today. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Taking all reports into account, the Board concludes that the evidence of record is at least in equipoise, meaning that the evidence for and against the Veteran’s claim is essentially equal. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the grant of service connection for major depressive disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board recognizes that the record reflects other mental diagnoses of cocaine dependence, alcohol dependence, schizoaffective disorder by history, polysubstance abuse, mood disorder, bipolar disorder, and anxiety disorder. However, VA is precluded from differentiating the symptoms of the Veteran’s Major Depressive Disorder and those of his other psychiatric symptoms in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). Further, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran’s overlapping psychiatric symptoms. Thus, the Veteran would not be entitled to separate ratings for symptoms or impairment of his other mental diagnoses, as 38 C.F.R. § 4.14 provides that rating such manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided. That is, a claimant may not be compensated twice for the same symptomatology as “such a result would over compensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). Headaches Given the favorable decision above, the Board finds that service connection for the Veteran’s headaches on a secondary basis is also warranted. Specifically, the most probative evidence of record demonstrates that the Veteran’s headaches had onset in service but are presently caused or aggravated by his now service-connected depressive disorder. In this regard, the Board assigns significant probative weight to the June 2017 private opinion from R.W., M.D., concluding that “the Veteran’s headaches clearly started in service and are very likely aggravated by his depressive disorder.” The Veteran reported that his depression bothers him and he becomes stressed and which brings on a headache. Citing to medical research, the physician indicated that it is well established that mental disorders both cause and aggravates headaches. Further, the private opinion reflects consideration s of the Veteran’s claims file, and provides thorough reasoning for his conclusion. See Headaches (including Migraine Headaches) DBQ and accompanying statement from R.W., M.D. dated June 2017. The Board further observes that there is no other medical evidence addressing the presence of a causal connection between the Veteran’s headaches and depressive disorder. As such, the Board finds that the Veteran’s headaches are proximately due to or the result of his service-connected major depressive disorder. The Veteran is also competent to report the occurrence of his headache symptoms since they are within his realm of personal and firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). (Continued on the next page) Given the favorable medical opinion and lay testimony of record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel