Citation Nr: 18157090 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-05 180 DATE: December 11, 2018 ORDER Entitlement to service connection for a hearing loss disability is dismissed. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and PTSD is granted. REMANDED Entitlement to service connection for asthma is remanded. Entitlement to a rating in excess of 20 percent for lumbar spondylosis and lumbar facet joint syndrome is remanded. Entitlement to a rating in excess of 20 percent prior to February 1, 2014 for cervical spondylosis is remanded. Entitlement to a rating in excess of 10 percent for gastritis is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At his November 2018 Travel Board hearing, the Veteran stated on the record that he wished to withdraw his appeal of the issue of service connection for a hearing loss disability. 2. The Veteran’s PTSD and depression were caused by service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of service connection for a hearing loss disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for an acquired psychiatric disability, to include major depressive disorder and PTSD have been met. 38 U.S.C. §§ 1110, 1157, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to June 2004, May 2005 to January 2006 and May 2007 to January 2008, with additional periods of National Guard service. This matter came before the Board of Veterans Appeals (Board) on appeal from October 2011, June 2013 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 Travel Board hearing. Evidence in the record suggests that the Veteran has been diagnosed with multiple psychiatric conditions; therefore the Board will broadly construe the issue of service connection for depression as a claim for service connection for an acquired psychiatric disability, to include major depressive disorder and PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Withdrawal 1. Entitlement to service connection for a hearing loss disability An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38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. At the November 2018 Travel Board Hearing, the Veteran confirmed on the record that he wished to withdraw his appeal of the issue of service connection for a hearing loss disability. The undersigned Veteran’s Law Judge advised the Veteran of the impact of such a withdrawal and the Veteran confirmed his wish to withdraw. As the Veteran confirmed on the record that he wished to withdraw his appeal regarding this issue after being advised of the impact of the withdrawal, the Board finds that the withdrawal was explicit, unambiguous and done with the full understanding of the consequences of such an action. See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Accordingly, the Board does not have jurisdiction to review the issue of service connection for a hearing loss disability, and the appeal as it pertains to this issue is dismissed. 38 C.F.R. § 20.204. Service Connection 2. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and post-traumatic stress disorder (PTSD) The Veteran contends that his psychiatric disabilities are due to his experiences in service, particularly to his service in Iraq. The Board concludes that he has current diagnoses of major depressive disorder and PTSD that are due to trauma in service and that service connection is therefore warranted. 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f). The Veteran’s VA treatment records document ongoing psychiatric treatment and diagnosis of PTSD. January 2015 VA treatment records diagnosed major depressive disorder and PTSD under the DSM-V criteria, noting the Veteran’s symptoms of depression, anxiety, irritability, anger and passive death wishes since his service in Iraq as a military policeman guarding POWs. The provider noted that the Veteran was in combat and frequently in fear for his life. A December 2010 VA examination found that the Veteran did not meet the DSM-IV criteria for PTSD but diagnosed depressive disorder. The examiner did not provide an etiological opinion. An October 2015 VA examination diagnosed major depressive disorder but did not provide an etiological opinion. An April 2015 Disability benefits Questionnaire (DBQ) from the Veteran’s VA provider diagnosed PTSD and major depressive disorder. The provider opined that the Veteran’s PTSD was related to service and noted that the Veteran had “war-related trauma.” An October 2015 DBQ from another VA provider also diagnosed PTSD and depressive disorder. The provider cited the January 2015 VA treatment note regarding the Veteran’s experiences serving as a military policeman and his symptoms since that time. The Veteran contends that he has PTSD due to his in-service experience. At the outset, the Board finds that the VA examinations and DBQs from VA providers are adequate for appellate review. There is no evidence that the providers were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the providers’ observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Veteran’s claimed stressors include his service as a military policeman (MP) in Iraq. In an September 2010 statement, the Veteran reported that he was sent to Abu Ghraib jail to support the unit there and that they were attacked every night. In a July 2013 statement, the Veteran noted that his assignment at the jail was to clear the road and man the entrance and perimeter and that there were mortar round attacks every night and the main gate was hit with an RPG. He also reported an occasion when he almost triggered an explosive, a fellow servicemember had to rescue him, and he believed he was going to die. The Board notes that the Veteran’s DD-214 documents service as an MP in Iraq in a designated imminent danger area and his receipt of the Iraq Campaign Medal. The Veteran also submitted a July 2013 statement from fellow servicemember E.M., who served with the Veteran in Iraq. E.M. confirmed that he served with the Veteran at the jail and that they were under mortar and RPG fire every night and that he rescued the veteran when he almost triggered the explosive. The Board notes that E.M. is competent to report his experiences in service and accords his statements significant probative weight. The Board therefore finds that the Veteran’s statements are corroborated by other competent evidence of record and concedes his claimed stressor. The Board finds that the Veteran has diagnoses of PTSD and major depressive disorder that have been linked to his military experience by the competent medical evidence of record. The only etiological opinions of record are the April 2015 and October 2015 DBQ, which found that the Veteran met the full DSM-V criteria for major depressive disorder and PTSD and that his disabilities were due to his military experiences. The October 2015 DBQ specifically cited treatment records which described the Veteran’s service as an MP in Iraq. While the December 2010 VA examiner found that the criteria for a PTSD diagnosis were not met, the Veteran was subsequently diagnosed with PTSD in 2015. The Board also notes that the April 2015 and October 2015 DBQs are supported by the VA treatment records, which document diagnoses of PTSD and depressive disorder and link those diagnoses to the Veteran’s service. The preponderance of the medical evidence of record therefore indicates that the Veteran has an acquired psychiatric disability, to include major depressive disorder and PTSD, due to his military service. Service connection is therefore warranted. 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. At the November 2018 hearing, the Veteran reported that he receives ongoing VA treatment. The Board’s review indicates that the last VA treatment records added to the file date from January 2016. Remand to obtain any outstanding VA treatment records is therefore required. The Board also notes that some of the treatment records contained in the file require translation. Upon remand, the Board asks that they be translated into English. 2. Entitlement to a rating in excess of 20 percent for lumbar spondylosis and lumbar facet joint syndrome is remanded. 3. Entitlement to a rating in excess of 20 percent prior to February 1, 2014, in excess of 10 percent from February 1, 2014 to July 9, 2014, and in excess of 30 percent thereafter for cervical spondylosis is remanded. 4. Entitlement to a rating in excess of 10 percent for gastritis is remanded. At the November 2018 hearing, the Veteran testified that his gastritis, lumbar and cervical spine disabilities have all worsened since his last VA examinations in May 2013 and September 2014. As the evidence of record suggests his service-connected disabilities have increased in severity since the most recent VA examinations, the Board finds that the Veteran should be afforded new examinations. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran also reported at the November 2018 hearing that he receives ongoing private treatment for his spine disabilities. Any outstanding records should therefore be obtained upon remand. 5. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of increased ratings for gastritis and lumbar and cervical spine disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2016 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who treat his claimed disabilities. Make two requests for the authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. Identify all records contained in the file requiring translation, and have them translated into English. 4. After the development outlined in (1)-(3), schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar and cervical spine disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All necessary tests should be performed and all findings should be reported in detail. The examiner should identify all lumbar and cervical spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After the development outlined in (1)-(3), schedule the Veteran for an appropriate VA examination to determine the current level of severity of his gastritis. The examiner should review the file and provide a complete rationale for all opinions expressed. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel