Citation Nr: 1807399 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-01 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. 3. Entitlement to service connection for a left elbow disability. 4. Entitlement to service connection for a right elbow disability. 5. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service from November 1976 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction over the case was subsequently transferred to the VA RO in Waco, Texas. In connection with this appeal, the Veteran testified at hearing at the RO before the undersigned Veterans Law Judge in August 2017. A transcript of that hearing has been associated with the claims file. Procedurally, the Veteran's claim of entitlement to service connection for depressive disorder and anxiety was originally denied in February 2004. In August 2007, the Veteran filed a claim for entitlement to service connection for schizophrenia. A December 2007 rating decision denied the schizophrenia claim on the merits. The Board notes that a claim for service connection for an acquired psychiatric disorder encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the issue on appeal broadly, to encompass PTSD and depression, as well as any other diagnosed acquired psychiatric disorder. The issues of entitlement to service connection for a right elbow disability, and a left elbow disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed February 2004 rating decision denied service connection for depression and anxiety. 2. The evidence associated with the claims file subsequent to the February 2004 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable probability of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. 3. The most probative evidence of record establishes that the Veteran is diagnosed with an acquired psychiatric disability that is related to his active service. 4. In August 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran at his Board hearing that he wished to withdraw the claim of entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for withdrawal of the issue of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 7105(a), 7108 (2012); 38 C.F.R. § 20.200, 20.202, 20.204 (b)(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, claimed as PTSD and depression. A February 2004 rating decision denied entitlement to service connection for depression and anxiety because no nexus was established. The Veteran did not appeal that decision. The evidence received since the February 2004 rating decision includes additional VA treatment records, and testimony from the Veteran, both at his Board hearing and by written statements, alleging specific stressors and incidences of military sexual trauma (MST) while in service. Further evidence includes a September 2017 letter from the Veteran's VA treatment provider confirming the Veteran's treatment specifically for MST. That evidence includes medical records showing that the Veteran began treatment for an acquired psychiatric disorder beginning in approximately 1992, and was diagnosed with depression, a personality disorder, and anxiety in 2002, as well as PTSD in 2016. The Board finds that the evidence added to the record since the February 2004 rating decision is new and material. In this regard, the Board notes that it is not cumulative or redundant of the evidence previously of record. It also raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, reopening the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is warranted. To that extent only, the appeal is allowed. Service Connection for Acquired Psychiatric Disability The Veteran contends that his acquired psychiatric disability, to include PTSD and depression, was caused by an incident in service where he was sexually assaulted by a fellow service member when he was 19; thus, his claim is predicated on MST. He contends that after the sexual assault in service, he became increasingly isolated, and that he visited sick call but did not report the MST. He further reports that he requested and received an assignment driving a jeep which essentially allowed him the opportunity to be alone. Lastly, the Veteran asserts that while he was happily married in service, he began experiencing marital problems after he was assaulted. Service records confirm that the Veteran was in fact experiencing issues in service. Specifically, his service treatment records (STRs) in April 1977, when the Veteran was 19, indicated that he was referred to be examined by a mental health officer. In this regard, the Board finds the Veteran's reports of MST to be credible. Post-service VA treatment records show that the Veteran has sought mental health treatment since at least May 2002, wherein treatment notes indicated that the Veteran has been treated for mental health symptoms since approximately 1991. Those records have not been associated with the claims file. However, VA treatment records from 2002 to present day have presented diagnoses of PTSD, depressive disorder, schizophrenia, schizotypal disorder, and anxiety disorder. In September 2017, the Veteran was treated at the VA Medical Center. The treatment provider at that time wrote a letter stating that the Veteran has been receiving psychiatric treatment as a result of his MST. Specifically, the treatment provider indicated that the Veteran had schizotypal personality disorder. As to etiology, the treatment provider stated that schizotypal personality disorder presents by early adulthood, around the time when the Veteran was assaulted, and as such, it was difficult to declare which occurred first, the disorder or the MST. However, the VA treatment provider fixated on the Veteran's feelings of loss of trust and inability to cope with hardships as a result of his MST, which are symptoms that have been otherwise attributed to other diagnoses. Upon review of the relevant medical evidence, the Board concludes that the September 2017 letter from the Veteran's VA mental health treatment provider is of significant probative value. The VA treatment provider properly considered the Veteran's contentions regarding his in-service assault, and provided a well-reasoned conclusion. It seems that the Veteran's treating VA physician, who sees him regularly and knows the details of his treatment, is of the opinion that he has several psychiatric disabilities related to his MST. In his VA and private treatment, the Veteran regularly spoke of the stressors related to his active service. Therefore, the Board finds that the record contains credible evidence of an in-service stressor, as well as medical evidence that provides a current diagnosis and relates that diagnosis to the Veteran's in-service stressor. Thus, resolving the benefit of the doubt in favor of the Veteran, the Board finds that entitlement to service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection for a Low Back Disability Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). The record shows that the Veteran filed a timely notice of disagreement with the denial of his claim of entitlement to service connection for a low back disability. In November 2012, the Veteran perfected an appeal of that issue. At the Veteran's August 2017 Board hearing, the Veteran's representative stated that he wished to withdraw the appeal of the issue of entitlement to service connection for a low back disability which was pending before the Board. Such withdrawal is effective the date the correspondence was received at the Board. 38 C.F.R. § 20.204 (b) (3). Accordingly, as the Veteran has withdrawn the substantive appeal, the Board does not have jurisdiction to decide the appeal and it is deemed withdrawn. ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. The issue of entitlement to service connection for a low back disability is dismissed. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With regard to the Veteran's claims of entitlement to service connection for right and left elbow disabilities, the Veteran has asserted that he injured his elbows while in active service. Specifically, the Veteran has contended that his elbows were damaged as result of commands to partake in excessive amounts of push-ups in service. A review of the Veteran's STRs is largely silent for any complaints of or treatment for any elbow disabilities in active service. Furthermore, the Veteran denied any painful or trick elbow pain, arthritis or bone deformity at his September 1979 separation examination. However, in July 1978, the Veteran's STRs indicated that he sustained a large abrasion on his right arm from a fall where he skidded on the street, and that the abrasion spread from his elbow to his forearm. Post-service medical records indicated that the Veteran began receiving treatment for bilateral elbow disabilities in approximately 1997, after complaining of tingling in both elbows. VA treatment records from June 1998 to the present indicated that the Veteran had impinged nerves in his elbows which resulted in surgery to relieve the ulnar nerve neuropathy. At separate occasions, the Veteran has asserted that his bilateral elbow disabilities began after he was hit by a car in June 1998, and other times, he has attributed his bilateral elbow disabilities to his active service. To date, the Veteran has not been afforded a VA examination with regard to his bilateral elbow disabilities. Given the Veteran's reported in-service injuries, the Board finds that the medical evidence of record is inadequate to decide the claim, and it must be remanded to determine the nature and etiology of his right and left elbow disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, attempts to identify and obtain current treatment records should be made before a decision is made in this case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right and left elbow disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion with respect to any currently present right and left elbow disabilities as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to the Veteran's active service. The examiner should specifically address the Veteran's in-service fall and abrasion and any undue stress on the Veteran's elbows as due to excessive push-ups. The examiner should presume that the Veteran is a reliable historian. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutcherousky 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs