Citation Nr: 1807997 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-00 322A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. 2. Entitlement to service connection for polysubstance abuse. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to April 1990, and from February 2003 to May 2004.. This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. During the pendency of the appeal, the jurisdiction over the Veteran's file was transferred to Waco, Texas. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. During the September 28, 2017 Board hearing and prior to the promulgation of a decision in the appeal, the Veteran and his representative notified the undersigned Veterans Law Judge that the Veteran wished to withdraw his appeal as to the claim of entitlement to serivce connection for polysubstance abuse. 2. The evidence shows the Veteran's depressive disorder had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for polysubstance abuse have been met. 38 U.S.C. § 7105 (b)(2) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for the establishment of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2017). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (c) (2017). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (b) (1) (2017). Here, during the September 28, 2017 Board Videoconference hearing, the Veteran and his representative stated on the record that the Veteran wished to withdraw his appeal as to the claim of entitlement to serivce connection for polysubstance abuse disorder. This statement, memorialized in the hearing transcript associated with the claims file, satisfies the requirements for the withdrawal of a substantive appeal. See 38 C.F.R. § 20.204 (2017). As the Veteran has withdrawn his appeal with respect to the claim of entitlement to serivce connection for polysubstance abuse disorder, there remains no allegation of error of fact or law for appellate consideration, thus, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. Service Connection In the instant case, the Veteran seeks service connection for a psychiatric disorder that he states is due to his military service. For the reasons noted below, the Board finds service connection is warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims that he has a psychiatric disorder manifested by depression and anxiety as a result of his service in Iraq in 2003 and 2004. At his hearing in September 2017, the Veteran testified that he sought treatment for psychiatric problems during active duty and was prescribed antidepressants. The Veteran's service treatment records contain a notation that he did, in fact, seek mental health treatment in July 2003 and was prescribed antidepressants. While the Veteran was not specifically diagnosed with a psychiatric disorder, the treating physician noted the Veteran was referred for ongoing treatment for "isolation due to poor social skills, consider dysthymia." He separated from service in May 2004. As an initial matter, there is no question the Veteran has a diagnosis of depressive disorder with anxiety. VA treatment records show that the Veteran was first diagnosed in April 2005 and has continued to receive treatment throughout the course of this appeal. Additionally, VA treatment records show diagnoses of adjustment disorder and mood disorder. See VA July 2009 VA treatment record. In May 2010, the Veteran was initially examined by VA in connection with this claim. The May 2010 examiner diagnosed the Veteran with personality disorder, not otherwise specified, and polysubstance abuse in partial remission. In response to the question of whether the Veteran's depression with anxiety is related to the psychological issues noted in service, the examiner stated that the Veteran had not consistently endorsed symptoms of anxiety or depression consistent with a DSM-IV diagnosis, and did not endorse such symptoms during the interview. The examiner continued on to state that the Veteran's social difficulties and substance use were manifestations of personality issues, which were present during his serivce. In November 2011, VA obtained an addendum opinion as to whether the previously diagnosed depression with anxiety is due to the Veteran's military serivce. The addendum opinion stated that diagnoses of depression and anxiety disorder were not found. Therefore, it was not possible that depression with anxiety could be related to the previous event. Most recently, in April 2017, the Veteran was again examined by VA in order to determine whether his currently diagnosed mental health disorders are due to his military service and the treatment he sought therein. See April 2017 VA Medical Opinion Disability Benefits Questionaire (DBQ) associated with April 2017 VA Mental Disorders (other than PTSD and Eating Disorders) DBQ. The April 2017 VA examiner confirmed a diagnosis of recurrent depressive disorder and stated the Veteran also suffers from personality disorder, which exacerbates his depression. The examiner concluded it is at least as likely as not the Veteran's depressive disorder is due to his military service. The examiner stated that the Veteran has consistently reported that his depression began during and has continued since his military service. Based on the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds service connection for depressive disorder is warranted. The competent medical evidence of record has established a current disability exists, and the April 2017 VA examiner conclusively determined that it is due to his military service and the mental health treatment the Veteran sought therein. Therefore, the Board finds that service connection is warranted for depressive disorder. Consequently, the benefit sought on appeal is granted. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). ORDER The claim of entitlement to service connection for polysubstance abuse disorder is dismissed. Service connection for depressive disorder is granted. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs OUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED