Citation Nr: 18150935 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-18 151 DATE: November 16, 2018 ORDER For the issues of service connection for tinnitus, chronic sinus infection, hemorrhoids, and hematuria, and a higher rating for degenerative disc disease of the lumbar spine, currently rated as 20 percent disabling, the appeal is dismissed. Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a higher rating for S-1 radiculopathy, left lower extremity, currently rated as 20 percent disabling, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for restless leg syndrome, right leg, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a foot disability is remanded. FINDINGS OF FACT 1. In May 2018, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran requesting a withdrawal of his appeal for the issues of service connection for tinnitus, chronic sinus infection, hemorrhoids, and hematuria/kidney disability, and a higher rating for degenerative disc disease of the lumbar spine. 2. The Veteran’s current PTSD is related to a verified in-service stressor. CONCLUSIONS OF LAW 1. For the issues of service connection for tinnitus, chronic sinus infection, hemorrhoids, and hematuria/kidney disability, and a higher rating for degenerative disc disease of the lumbar spine, the criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated August 2010 and September 2013. The Veteran requested a Board hearing. See May 2014 substantive appeals. Nevertheless, in an October 2018 letter, the Veteran, through his attorney, indicated that he no longer wanted a Board hearing. Accordingly, the hearing request is deemed withdrawn.   1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for chronic sinus infection. 3. Entitlement to service connection for hemorrhoids. 4. Entitlement to service connection for hematuria/kidney disability. 5. Entitlement to a higher rating for degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling. 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. 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’s attorney submitted a written statement to the Board in May 2018, after the case was certified to the Board for appeal. In it, the Veteran’s attorney indicated that the Veteran wished to withdraw all his claims on appeal, except for his claim of service connection for PTSD. He specified that the issues being withdrawn were the service connection claims for tinnitus, sinusitis, hemorrhoids, and hematuria/nephritis, as well as the claim of a higher rating for the back. The Board finds that these issues have been withdrawn. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. 6. Entitlement to service connection for PTSD. The Veteran seeks service connection for PTSD. See March 2012 statement in support of claim. He asserts that his PTSD is related to traumatic experiences in service. Significantly, the Veteran has indicated that he witnessed two fellow servicemembers drown to death. He described both servicemembers as friend, and stated that he and other individuals unsuccessfully tried to rescue the drowning servicemembers. He added that this event has tormented him for many years. VA has been able to verify the reported stressor. See VA 21-3101 request for information, dated June 14, 2013; military personnel records, dated July 3, 2013. The Board concludes that the Veteran has a current diagnosis of PTSD that is related to traumatic events in service. 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). An August 2013 VA examination shows a negative finding for PTSD. Rather, the examiner diagnosed mood disorder NOS. The examiner did not provide a clear rationale for why mood disorder, rather than PTSD, was the appropriate diagnosis, even after noting that the Veteran had previously been diagnosed with mild PTSD. (Indeed, a June 2013 VA treatment note shows a diagnosis of mild PTSD.) The VA examiner also concluded that a nexus cannot be formed between the Veteran’s conceded stressor and his current symptoms. No rationale was provided. In May 2018, the Veteran submitted a private examination report from Dr. MLC. Based on a review of the record and an interview with the Veteran, Dr. MLC concluded that the Veteran’s only psychiatric diagnosis is PTSD, with dissociative symptoms, with delayed expression. Dr. MLC further opined that the Veteran’s PTSD is etiologically related to the multiple traumas he witnessed in service, to include the drowning of two fellow servicemembers. Dr. MLC’s report included a detailed discussion of the August 2013 VA examination report. The Board assigned the August 2013 VA opinion a low probative weight, as it does not show adequate consideration of the relevant evidence (especially, the Veteran’s long history of psychiatric symptoms) and its conclusion are not supported by a clear and thorough rationale. In contrast, Dr. MLC’s opinion shows a detailed analysis of the evidence and provides a medical explanation for all conclusion reached. As such, the Board finds Dr. MLC’s opinion is more probative than that of the August 2013 VA examiner and assigns it much weight. As the weight of the evidence supports a finding that the Veteran has a current diagnosis of PTSD and that this PTSD is etiologically related to a verified in-service stressor, the Board finds that service connection for PTSD is warranted. REASONS FOR REMAND 1. Entitlement to a higher rating for S-1 radiculopathy, left lower extremity, currently rated as 20 percent disabling, is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for sleep apnea is remanded. 4. Entitlement to service connection for restless leg syndrome, right leg, is remanded. 5. Entitlement to compensation under 38 U.S.C. § 1151 for a foot disability is remanded. In March 2016, the Veteran submitted a timely notice of disagreement with regard to an April 2015 rating decision, which denied entitlement to a higher rating for S-1 radiculopathy, service connection for hypertension, sleep apnea, and restless leg syndrome, and compensation under 38 U.S.C. § 1151 for a foot disability. VA has not yet provided a statement of the case with regard to these issues. As such, the Board has no discretion, and a remand is required. Manlincon v. West, 12 Vet. App. 238, 240 (1999); 38 C.F.R. § 19.9(c). These issues will only be returned to the Board if the Veteran files a timely substantive appeal after issuance of the Statement of the Case. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). (CONTINUED ON THE NEXT PAGE)   The matters are REMANDED for the following action: Provide the Veteran with a statement of the case on the issues of a higher rating for S-1 radiculopathy, service connection for hypertension, sleep apnea, and restless leg syndrome, and compensation under 38 U.S.C. § 1151 for a foot disability. Do not certify these issues to the Board unless a timely substantive appeal is received. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel