Citation Nr: 20007335 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 17-36 541 DATE: January 29, 2020 ORDER The issue of service connection for a bilateral eye disorder (characterized as bilateral cataracts and bilateral refractive error) is dismissed. Service connection for an acquired psychiatric disorder, diagnosed as a major depressive disorder and post-traumatic stress disorder (PTSD), is granted. REMANDED The issue of service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. During the September 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of service connection for a bilateral eye disorder (characterized by the RO as bilateral cataracts and bilateral refractive error). 2. The evidence is at least evenly balanced as to whether the Veteran’s PTSD is due to his stressors. 3. The evidence is at least evenly balanced as to whether the Veteran’s depressive disorder is related to his military service. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal of the issue of service connection for a bilateral eye disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for a depressive disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to September 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2015 rating decision, the RO denied service connection for sleep apnea and a bilateral eye disorder. In the May 2015 rating decision, the RO denied service connection for PTSD and a major depressive disorder. In September 2019, the Veteran presented testimony before the Board. During the hearing, the Veterans Law Judge granted the Veteran’s request for the record to be held open for an additional ninety days to allow the Veteran to submit additional evidence. Withdrawal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 or her authorized representative. 38 C.F.R. § 20.204. During the September 2019 Board hearing, the Veteran stated that he wished to withdraw his appeal as to the issue of service connection for a bilateral eye disorder (characterized by the RO as bilateral cataracts and bilateral refractive error). “[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant validly withdrew his appeal orally must include a finding regarding whether [the appellant] understood the consequences of withdrawing his claims.” Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the September 2019 Board hearing, the Veteran confirmed that he wished to withdraw his appeal as to the issue of service connection for a bilateral eye disorder. Additionally, given the discussion during the Board hearing regarding the other claims on appeal, the Board finds that the Veteran understood the consequences of withdrawing the appeal as to the issue of service connection for a bilateral eye disorder. In light of the above, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of service connection for a bilateral eye disorder, and it is dismissed. Service Connection for an Acquired Psychiatric Disorder Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). For the following reasons, service connection for an acquired psychiatric disorder, diagnosed as PTSD and a major depressive disorder, is warranted. The Veteran has current diagnoses of PTSD, based on his in-service stressors, and a major depressive disorder. See VA examination report dated May 2015 and VA mental health note dated April 2015. Notably, although the May 2015 VA examiner found that the Veteran did not have a diagnosis of PTSD pursuant to the DSM-5 criteria, the Veteran’s VA treatment records and an October 2019 letter from Carlos Rodriguez, M.D., indicates that PTSD was diagnosed. See VA mental health note dated April 2015 (where a VA clinical psychologist diagnosed PTSD, interviewed the Veteran, and documented his reported military stressors) and VA mental health note dated May 2015. If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM criteria relating to the adequacy of the symptomatology and sufficiency of the stressor. See Cohen, 10 Vet. App. at 153. Therefore, as PTSD was diagnosed by a VA medical professional, the diagnosis was in accordance with 38 C.F.R. § 4.125(a). The Veteran claims that his acquired psychiatric disorder is due to his military service in Tuy Hoa, Vietnam. He reports several events that caused his acquired psychiatric disorder, to include fear of hostile military activity and witnessing loss of lives in Tuy Hoa, Vietnam. See VA examination report dated May 2015. Specifically, the Veteran asserts that during his Vietnam service, he was assigned to a combat support group and that he would frequently hear B52 bombing attacks. He also reports that his unit was attacked by the enemy for several days on different occasions and that he discharged his weapon. He claims that he assisted other servicemembers in recovery after his base was attacked. Furthermore, he asserts that he was responsible for retrieving soldiers’ bodies. A May 2015 VA memo shows that the Veteran served in Tuy Hoa, Vietnam from September 1967 to September 1968, and that his unit, combat support group, was attacked on three separate dates during his service. Moreover, the AOJ conceded that the Veteran experienced stressful events in service, to include fear of hostile military or terrorist activity. See rating decision dated May 2015. Given that the Veteran’s in-service stressors (namely fear of hostile military activity and witnessing deaths in Tuy Hoa, Vietnam) is consistent with the circumstances of his service and the absence of clear and convincing evidence to the contrary, the statements establish the occurrence of his in-service stressors. In a May 2015 VA examination report, the VA examiner opined that the Veteran’s major depressive disorder was less likely than not due to his military service. The examiner reasoned that the Veteran’s major depressive disorder was developed after service and that it was secondary to multiple stressors and health conditions. The May 2015 VA opinion is afforded little probative value if any, as the examiner’s rationale was vague. For example, the examiner stated that the Veteran’s depressive disorder was due to “multiple stressors” but did not explain what stressors specifically caused the depressive disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In an October 2019 statement, Dr. Carlos Rodriguez, indicated that he was a Board-Certified General psychiatrist and an assistant professor of psychiatry at two college universities. Dr. Carlos Rodriguez opined that the Veteran’s PTSD and major depressive disorder are related to his military service. Dr. Carlos Rodriguez explained that the Veteran served in Vietnam and that he had witnessed many deaths. Dr. Carlos Rodriguez also indicated that the Veteran assisted other servicemembers in recovery after his base was under enemy attack for several days. Dr. Carlos Rodriguez noted that the Veteran had first experienced PTSD and major depressive symptoms during service due to the above events, and that he continued to experience symptoms, such as anxiety and intrusive thoughts, due to his military trauma in Vietnam. The October 2019 opinion is highly probative as to whether there is a link between the Veteran’s PTSD and his in-service combat stressors and whether the major depressive disorder is related to his military service. Dr. Carlos Rodriguez explained the reasons for his conclusion based on the Veteran’s military history and his current and past acquired psychiatric symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The evidence is at least evenly balanced as to whether the Veteran’s PTSD is related to his in-service combat stressors and whether his depressive disorder is related to his military service. Thus, service connection for an acquired psychiatric disorder, diagnosed as PTSD and a major depressive disorder, is warranted. REASONS FOR REMAND 1. Service connection for a sleep disorder, to include sleep apnea The Veteran claims that his sleep apnea is due to his military service and that he has had sleep problems since service. See VA examination report dated February 2015 and VA Form 9 dated July 2017. The Veteran’s August 1968 separation examination report shows that the examining physician noted that the Veteran had “trouble sleeping frequently.” In VA treatment records dated in October 2005, the treatment provider noted that she reviewed the Veteran’s sleep study and issued him a CPAP. In the October 2005 VA treatment record, a VA treatment provider indicated that the Veteran underwent two sleep studies from an outside provider. In February 2015, the Veteran was afforded a sleep apnea examination. The VA examiner indicated that sleep apnea was diagnosed in 2001. The examiner stated that “a more precise diagnosis cannot be rendered as there is no objective data to support a more definitive diagnosis.” The examiner then stated that she was unable to provide an opinion as to whether the Veteran’s sleep apnea is related to his military service without resorting to mere speculation. The examiner explained that the Veteran’s service records do not show that he had a sleep apnea disorder during service. Several of the Veteran’s VA treatment records and a July 2013 private treatment record show that sleep apnea was diagnosed. The evidence is unclear whether the treatment records that show a diagnosis of sleep apnea was based on a current sleep study or the Veteran’s reports of a prior diagnosis of sleep apnea, which would have occurred before the appeal period. In light of the above, a remand is necessary to afford the Veteran a VA examination, to include a sleep study, to determine the nature and etiology of his sleep apnea. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sleep disorder, to include sleep apnea. A sleep study should be performed. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder, to include sleep apnea, had its onset in service or is otherwise related to service. The physician must provide a rationale for the opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.