Citation Nr: 20003348 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-10 913 DATE: January 14, 2020 ORDER Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and alcohol use disorder is dismissed. Entitlement to an earlier effective date prior to June 12, 2014, for PTSD and alcohol use disorder is dismissed. REMANDED Entitlement to service connection for left-hand amputation as secondary to the service-connected disability of PTSD and alcohol use disorder is remanded. FINDINGS OF FACT 1. At the August 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for entitlement to an increased rating in excess of 50 percent for PTSD and alcohol use disorder. 2. At the August 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for entitlement to an earlier effective date prior to June 12, 2014 for PTSD and alcohol use disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an increased rating in excess of 50 percent for PTSD and alcohol use disorder has been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal for entitlement to an earlier effective date prior to June 12, 2014 for PTSD and alcohol use disorder has been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from September 1970 to August 1972, including in the Republic of Vietnam. The Veteran’s military records show that he was awarded with medals and commendations, including the Combat Infantry Badge. The Veteran is clearly a credit to the United States Army and his service to his country is greatly appreciated. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge at an August 2019 Board hearing. A transcript of the hearing has been associated with the claims file. 1. & 2. Entitlement to an increased rating in excess of 50 percent for PTSD and alcohol use disorder and entitlement to an earlier effective date prior to June 12, 2014 for PTSD and alcohol use disorder are dismissed. 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. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. At the August 2019 Board hearing, the Veteran withdrew his claims for entitlement to an increased rating in excess of 50 percent for PTSD and alcohol use disorder and entitlement to an earlier effective date prior to June 12, 2014 for PTSD and alcohol use disorder. See August 2019 Board Hearing Transcript. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3) (2018). The Board finds that the Veteran’s withdrawals were explicit, unambiguous, and done with full understanding of the consequences of such actions, where it was explained to him during the hearing what withdrawal of the claim would mean and how he would have to bring another claim if he withdrew this claim. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are dismissed. REMANDED 3. Entitlement to service connection for left-hand amputation as secondary to the service-connected disability of PTSD and alcohol use disorder is remanded. The Veteran asserts that his left-hand amputation is secondary to his service-connected disability of PTSD and alcohol use disorder. At his Board hearing, the Veteran attested that he served in Vietnam during the Vietnam War and came home in 1972. He stated that due to his PTSD, he attempted suicide in 1980. That suicide attempt, involving a gun, left him with a bullet in his brain, which in turn, caused him some neurological ramifications, including involuntary movements of the left hand, such as scratching his face while sleeping. As a result, upon the advice of his doctors, he had his left hand amputated. Etiology opinions were obtained in November 2014. First, in conjunction with the November 2014 Initial VA PTSD Disability Benefits Questionnaire (DBQ), the VA examiner opined that it is his medical opinion that it is less likely than not that the Veteran’s amputation of the left hand is proximately due to or the result of PTSD. The stated rationale was that the timing of the self-inflicted gunshot would suggest that the self-inflicted gunshot wound to the head was the result of depression and loneliness associated with being separated from his wife and family. The examiner reasoned that it was the Veteran’s and then-wife’s first Thanksgiving apart while he and his wife were separated prior to divorce. The examiner stated that the Veteran was unable or unwilling to provide a clear explanation of why he shot himself. The Veteran indicated that the gunshot wound might have been secondary to an accidental ricochet. The Veteran did not recall planning to kill himself or recall why he shot himself. By his description, the incident must have been impulsive. He was preparing a Thanksgiving dinner for neighbors he invited to his house. The examiner stated that the Veteran gave no indication whatsoever that PTSD symptoms were a component of his thinking when he shot himself. Next, in conjunction with the November 2014 VA Amputations DBQ, another VA examiner opined that the Veteran’s left-hand amputation due to nerve/muscle damage from attempted suicide is less likely than not proximately due to or the result of the Veteran’s service-connected condition. See November 2014 VA Amputations DBQ. The examiner stated that based on the VA PTSD DBQ findings, she agrees with the VA PTSD examiner that the 1980 [self-inflicted gunshot] injury must have occurred secondary to marital conflict. She stated that the gunshot injury occurred in 1980, and the Veteran did not receive PTSD treatment until April 2014, five months after the left-hand amputation. However, this opinion is inconsistent with the proposition in Frost v. Shulkin, that, to later support a grant of secondary service connection, a primary disability need not be service connected or even diagnosed at the time that a secondary disability is incurred. 29 Vet. App. 131, 138 (2017). Hence, treatment is not an indicator of whether or not the disability existed at the time. The record also contains an August 2019 private medical opinion from VA provider Dr. L. U., who opined: “It is my professional opinion that [the Veteran’s] suicide attempt by gunshot and the resulting sequela are directly related to his posttraumatic stress disorder and associated symptoms from his time spent in Vietnam. The suicide attempt occurred shortly after returning from his combat tour in Vietnam.” In addition, the record contains relevant medical treatment records. First, a November 26, 1980 medical record documents that the Veteran was apparently depressed over marital problems and suffered a self-inflicted gunshot wound to the right temporoparietal region of the head. The record states that the Veteran shot at a wall and apparently the bullet ricocheted striking him in the head. Admission skull x-rays revealed an extensive right front parieto-occipital skull fracture with numerous metallic fragments lying in the left parietal region. Next, a May 1981 medical record shows that the Veteran stated that he has had dysphoric mood and persistent suicidal ideation since his first-wife filed for divorce in May of 1980. During the three months prior to the Veteran’s gunshot wound, he had initial and terminal insomnia. There was also a decrease in appetite with a 35 lbs. weight loss. The record indicates that the Veteran’s then-wife stated that the marriage had difficulties from the onset, including because the Veteran would drink alcohol excessively. Moreover, in the November 2014 Initial PTSD DBQ, the VA examiner noted that the Veteran’s first wife left him because they went to Alcoholics Anonymous, and she was told to divorce the Veteran because the Veteran would never change regarding his excessive alcohol use. Based on the foregoing, the Board finds that a clarification opinion must be obtained from a new psychiatrist as to whether any of the marital discord from the first marriage, and related psychiatric disorder symptoms such as depression and/or excessive alcohol use, was a manifestation of the Veteran’s current service-connected PTSD and/or service-connected alcohol use. The matters are REMANDED for the following action: 1. Obtain a new opinion from a NEW psychiatrist. The psychiatrist should be given a copy of this Board remand. If the examiner request, an examination may be ordered to address the below. The psychiatrist should be instructed to answer the following questions keeping in mind that based on Frost v. Shulkin, 29 Vet. App. at 138, A PRIMARY DISABILITY NEED NOT BE SERVICE CONNECTED OR EVEN DIAGNOSED AT THE TIME THAT A SECONDARY DISABILITY IS INCURRED: 1) The Veteran’s PTSD symptoms includes depression. Are the depressive symptoms he currently suffers from distinguishable from or are the same as the depressive symptoms he was suffering from in 1980 when he suffered a gunshot wound to his head? See also 1981 Medical Treatment Record (diagnosis of major depressive disorder). 2) Based on the evidence of record, and despite the Veteran being diagnosed with PTSD in 2014, has the Veteran been suffering from PTSD since he separated from service or did the PTSD disability have a delayed onset? 3) Was any of the marital discord from the first marriage, and related psychiatric disorder symptoms such as depression and/or excessive alcohol use, a manifestation or indication of, or otherwise related to, the Veteran’s current service-connected PTSD and/or service-connected alcohol use? The psychiatrist must review all of the records, and specifically address the records outlined in this Board remand THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST “CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO.” SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). 2. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.