Citation Nr: 1817896 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 17-20 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea, to include as secondary to PTSD. 3. Entitlement to an increased rating for psoriasis. 4. Entitlement to service connection for a lumbar condition. 5. Entitlement to service connection for lumbar radiculopathy/sciatica of left lower extremity. 6. Entitlement to service connection for lumbar radiculopathy/sciatica of right lower extremity. 7. Entitlement to service connection for pes planus. 8. Entitlement to service connection for binge eating disorder. 9. Entitlement to service connection for panic disorder with agoraphobia. 10. Entitlement to service connection for social anxiety disorder. 11. Entitlement to service connection for major depressive disorder. 12. Entitlement to service connection for generalized anxiety disorder. 13. Entitlement to service connection for obsessive compulsive disorder. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran served on active duty from September 2000 to September 2004. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2015 rating decision by a Department of Veterans Affairs Regional Office. In January 2018, the Veteran testified before the undersigned during a Board hearing held via videoconference capabilities. A copy of the hearing transcript has been associated with the claims folder. Since the matter on appeal was last adjudicated in the March 2017 statement of the case, additional evidence has been added to the file. However, given the favorable dispositions below and the waiver of initial AOJ review of this evidence in the January 2018 hearing, the Board may proceed without prejudice to the Veteran. The issue of entitlement to a TDIU has been raised by the record in August 2017, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The medical evidence shows a diagnosis of PTSD based on an in-service stressor. 2. The probative evidence of record shows that the Veteran's sleep apnea is related to his service-connected PTSD. 3. In January 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeals for entitlement to an increased rating for psoriasis and entitlement to service connection for a lumbar condition, lumbar radiculopathy/sciatica of the left lower extremity, lumbar radiculopathy/sciatica of the right lower extremity, pes planus, binge eating disorder, panic disorder with agoraphobia, social anxiety disorder, major depressive disorder, generalized anxiety disorder, and obsessive compulsive disorder, is requested. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Resolving doubt in favor of the Veteran, his sleep apnea was incurred secondary to the service-connected PTSD. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for withdrawal of the appeals for entitlement to an increased rating for psoriasis, and entitlement to service connection for a lumbar condition, lumbar radiculopathy/sciatica of the left lower extremity, lumbar radiculopathy/sciatica of the right lower extremity, pes planus, binge eating disorder, panic disorder with agoraphobia, social anxiety disorder, major depressive disorder, generalized anxiety disorder, and obsessive compulsive disorder, by the Veteran, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2016). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). The current version of 38 C.F.R. § 3.304(f)(3) states that when the claimed in-service stressor is related to the veteran's "fear of hostile military or terrorist activity," the following shall be demonstrated to establish service connection for PTSD: (1) the claimed stressor is consistent with the places, types and circumstances of the veteran's service; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and (3) the veteran's symptoms are related to the claimed stressor. For purposes of 38 C.F.R. § 3.304(f)(3), "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Additionally, there are special considerations for PTSD claims predicated on personal assault. The pertinent regulation, 38 C.F.R. § 3.304 (f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). PTSD The Veteran contends that he developed PTSD during active duty service. He has advanced that his PTSD was caused by two in-service stressors. His first reported stressor involves fear of terrorist threat activity as related to his duties during a high alert period following the terrorist attacks on the World Trade Center on September 11, 2001 (9/11). His second reported stressor involves chronic harassment, bullying, and physical assaults related to his Middle Eastern heritage from other soldiers following the 9/11 attacks. First, the Board finds that the Veteran has a current Axis 1 diagnosis of PTSD. See, e.g., June 2015 VA treatment record and July 2015 PTSD disability benefits questionnaire (DBQ) completed by the Veteran's treating VA staff psychologist, and October 2017 report from VA staff psychologist Dr. J. R.. Next, there is credible supporting evidence of a stressor. The Veteran has consistently reported the in-service stressors, detailed above. See, e.g., VA treatment records dated in June 2015, July 2015, and October 2017, PTSD Stressor Statements dated in July 2015 and October 2015, DBQ completed in July 2015, and January 2018 hearing testimony. The record also confirms that the Veteran was, in fact, on active duty service at the time of the 9/11 terrorist attacks. With respect to his first reported stressor, the Veteran indicated that following the 9/11 attacks, his duty station was on high alert and he experienced his first panic attack causing him to faint. He reported that this was the beginning of a persistent feeling of devastating anxiousness and fear. He indicated that his duties following the attacks included surveilling for potential terrorist activities, including searching for anthrax, and he felt terrified. The Veteran described this as a very stressful and traumatic time for him, but indicated that he did not seek treatment due to fear of losing his security clearance and being kicked out of service. The Board finds the Veteran's account of the claimed in-service stressor related to his fear of terrorist threat activity to be credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a). With respect to his second reported stressor, the Veteran reported that after returning from guard duty following the 9/11 attacks, he began to isolate himself, and his fellow soldiers and supervisors started to tease him about his heritage. He contended that he was called derogatory names and described multiple incidents of being pushed down stairs, thrown, nudged, shoved, punched, and cornered in hallways. He indicated further that he would wake up to banging on his barracks door. The Veteran reported that the chronic harassment began in January 2002 and then escalated to threats, bullying, and physical attacks. He contended that this harassment continued until the end of his active duty service but he did not report anything for fear of retaliation. Although there is no direct documentation of this harassment in the Veteran's service treatment or military personnel records, the Veteran submitted several buddy statements corroborating his reports of a significant change in behavior, to include depression for no identifiable reason, during service. See statements from C. G., B. L., P. C., L. J., and A. O. Moreover, the Veteran has pointed to other behavioral markers in the record to corroborate his reported in-service stressor, to include his discontinued use of leave to accrue time to leave the Army early, loss of interest in being promoted and continuing his goal of an Army officer career, weight gain as a result of binge eating, break up with his fiancée, discontinued attendance at prayer services, and Farsi tattoo removal during service. See October 2015 statement from Veteran. In May 2017, Dr. B. V, a licensed clinical psychologist, noted these behavioral markers were substantiated by the Veteran's credible reports and found that they indicated that the reported personal assaults occurred. 38 C.F.R. § 3.304 (f)(5). Finally, the sufficiency of the stressors have been verified by a competent VA medical professional, along with a nexus between the confirmed in-service stressor and the diagnosed acquired psychiatric disorder. See Sizemore, 18 Vet. App. 264 (2004). In a July 2015 DBQ, a VA staff psychologist confirmed that both of the Veteran's stressors were adequate to support a diagnosis of PTSD, and were related to his fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f). Moreover, in May 2017, a licensed clinical psychologist opined that the Veteran's PTSD was at least as likely as not incurred in or caused by the verified and substantiated abuse and harassment and assault that occurred in service. See also August 2017 opinion from Dr. D. A. Based on the above, the Board finds that the Veteran has a diagnosis of PTSD based on a claimed in-service stressor. The Veteran is competent to describe his in-service stressor related to his fear of terrorist threat activity following 9/11, and his claimed stressor is consistent with the circumstances of his service. Moreover, in light of the totality of the circumstances, and giving the Veteran the full benefit of the doubt, the Board finds that it is at least as likely as not that the personal assaults in the wake of 9/11 described by the Veteran occurred and that the Veteran has PTSD as a result. Further, the Board finds the July 2015 VA DBQ completed by the Veteran's treating VA staff psychologist, the July 2015 opinion from his treating VA psychologist, the May 2017 opinion from licensed clinical psychologist B. V., and the August 2017 opinion from Dr. D. A. to be competent and credible medical evidence that the Veteran's PTSD is related to the claimed in-service stressors. For these reasons, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Sleep Apnea The Veteran maintains that he has sleep apnea that is related to his active duty service, to include his now service-connected PTSD. The Veteran has submitted medical literature and buddy statements in support of his claim. For the reasons discussed below, the Board finds that service connection for sleep apnea, as secondary to the service-connected PTSD, is warranted. See 38 C.F.R. § 3.310(a). The Veteran is currently diagnosed with sleep apnea. See October 2014 VA treatment record and July 2015 DBQ. Therefore, the salient question to be answered is whether the currently diagnosed sleep apnea was caused or aggravated by the Veteran's service-connected PTSD. In the July 2015 DBQ completed by the Veteran's treating VA physician, the Veteran reported a history of snoring, sleep apnea, and hypersomnolence since his time in service, for the past 12 years. The physician opined that after a review of the file, to include the medical records, the Veteran's sleep apnea was likely related to and worsened by his PTSD and other mental health conditions. Moreover, in May 2017, Dr. B. V. opined that the Veteran's sleep apnea was at least as likely as not incurred in or caused by or aggravated by the Veteran's service-connected PTSD. Dr. B. V. noted the Veteran's lay statements and the buddy statements of record, which substantiated that the Veteran had sleep disturbance, nighttime breathing difficulty, and what appeared to be sleep apnea symptoms while in service. Dr. B. V. also cited to clinical studies for sleep apnea as secondary to PTSD, which he indicated highly supported a nexus between PTSD, depression, anxiety, and sleep apnea. Finally, in August 2017, Dr. D. A. indicated that after a review of the claims file and pertinent recent medical literature, it was more likely than not that the Veteran's sleep apnea was secondary to his PTSD. Thus, there is a current diagnosis of sleep apnea which the medical evidence of record has related to the Veteran's service-connected PTSD. There are no other medical opinions of record to contradict this opinion. Accordingly, because there is no competent and credible evidence of record to the contrary, at the very least the evidence for and against the claim is in relative equipoise, so service connection for sleep apnea is granted as secondary to the Veteran's service-connected PTSD. Dismissals 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 (2012). 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 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, in his January 2018 Video Conference hearing, has withdrawn the appeals of entitlement to an increased rating for psoriasis and entitlement to service connection for a lumbar condition, lumbar radiculopathy/sciatica of the left lower extremity, lumbar radiculopathy/sciatica of the right lower extremity, pes planus, binge eating disorder, panic disorder with agoraphobia, social anxiety disorder, major depressive disorder, generalized anxiety disorder, and obsessive compulsive disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of these issues and they are dismissed. ORDER Entitlement to service connection for PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to service connection for sleep apnea is granted, subject to the laws and regulations governing payment of monetary benefits. The claim of entitlement to an increased rating for psoriasis is dismissed. The claim of entitlement to service connection for a lumbar spine condition is dismissed. The claim of entitlement to service connection for lumbar radiculopathy/sciatica of the left lower extremity is dismissed. The claim of entitlement to service connection for lumbar radiculopathy/sciatica of the right lower extremity is dismissed. The claim of entitlement to service connection for pes planus is dismissed. The claim of entitlement to service connection for binge eating disorder is dismissed. The claim of entitlement to service connection for panic disorder with agoraphobia is dismissed. The claim of entitlement to service connection for social anxiety disorder is dismissed. The claim of entitlement to service connection for major depressive disorder is dismissed. The claim of entitlement to service connection for generalized anxiety disorder is dismissed. The claim of entitlement to service connection for obsessive compulsive disorder is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs