Citation Nr: 20022484 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 09-20 326 DATE: April 1, 2020 ORDER The appeals seeking to reopen service connection claims for posttraumatic stress disorder (PTSD) and right ear hearing loss on the basis of new and material evidence, and entitlement to increased ratings for lumbosacral strain, degenerative joint disease (DJD) of the bilateral knees, and bilateral foot calluses and left foot plantar wart, are dismissed. Service connection for an acquired psychiatric disability, to include anxiety and depression, is granted. FINDINGS OF FACT 1. During the October 2018 hearing, prior to the promulgation of a decision with respect to these matters, the Veteran withdrew his appeals seeking to reopen service connection claims for PTSD and right ear hearing loss on the basis of new and material evidence, and entitlement to increased ratings for lumbosacral strain, DJD of the bilateral knees, and bilateral foot calluses and left foot plantar wart. 2. A psychiatric disability was incurred in, or is otherwise etiologically related to, military service. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appeals seeking to reopen service connection claims for PTSD and right ear hearing loss on the basis of new and material evidence, and entitlement to increased ratings for lumbosacral strain, DJD of the bilateral knees, and bilateral foot calluses and left foot plantar wart, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. An acquired psychiatric disability, to include anxiety and depression, was incurred in service. 38 U.S.C. §§ 1106, 1110, 1116, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1976 to February 1977 and June 1979 to August 2000, including foreign service in Germany and Saudi Arabia. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal and the Army Commendation Medal. Prior to assessing the merits of this appeal, there are several procedural matters to address. First, in its review of the record, the Board has determined that the Veteran perfected appeals seeking service connection for kidney, pneumonia, and hypertension disorders. See October 2007 rating decision; October 2007 Notice of Disagreement (NOD); March 2008 Statement of the Case (SOC); March 2008 VA Form 9. However, this appeal stream was subsequently deactivated in the Veterans Appeals Control and Locator System (VACOLS) upon a notation of the Veteran’s purported “failure to respond,” dated October 31, 2008. This action appears to have been made in error, and the Board has since taken corrective measures to ensure the reactivation of this appeal stream. As such, these matters will be addressed in a later Board decision, should such action be required. Next, the Veteran has submitted two claims which have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ): (1) Service connection for a dental disorder (submitted in March 1977, between his two periods of service); and (2) service connection for malignant neoplasm of the gastrointestinal system (submitted in April 2011). Accordingly, the Board does not have jurisdiction over these matters, and they are instead referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). As to the current matters, the Veteran offered testimony during an October 2018 videoconference hearing before the undersigned Veterans Law Judge. A transcript of this proceeding has been associated with the record. At that time, there were two separate psychiatric appeals at issue: (1) Whether new and material evidence had been received to reopen a service connection claim for PTSD; and (2) entitlement to service connection for depression. The hearing transcript is in conflict as to whether the Veteran intended to withdraw both of these appeals. See October 2018 hearing transcript, pgs. 2-3 (indicating that claims for PTSD and depression were ripe for appellate consideration but were intended to be dismissed on the record); but see generally October 2018 hearing transcript (confirming Veteran’s intent to pursue the remaining “psychiatric” appeal and containing testimony thereon). In interpreting this evidence in the light most favorable to the Veteran, and in consideration of the totality of the record, to include the presiding Veteran’s Law Judge’s hearing notes and the content of the Veteran’s testimony, it is found that the PTSD claim has been withdrawn and the depression appeal remains. In this respect, the depression appeal has been expanded to include all acquired psychiatric disorders other than PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Withdrawals The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). During the October 2018 hearing, the Veteran withdrew his appeals seeking to reopen service connection claims for PTSD and right ear hearing loss on the basis of new and material evidence, and entitlement to increased ratings for lumbosacral strain, DJD of the bilateral knees, and bilateral foot calluses and left foot plantar wart. At that time, he specifically acknowledged that he understood the consequences of his actions, and was afforded the opportunity to discuss the withdrawals with his representative. No subsequent adjudicatory actions have been taken with respect to these appeals. Instead, the withdrawals were requested prior to the promulgation of a Board decision, such that there are no allegations of error of fact or law remaining for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are hereby dismissed. Service Connection The Veteran continues to pursue service connection for an acquired psychiatric disorder other than PTSD at this time. He offers a direct theory of entitlement only, and the Board will limit its analysis accordingly. Thus, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Insofar as the Veteran seeks service connection for an acquired psychiatric disorder, there is competent evidence of a current disability. Notably, he was diagnosed with anxiety disorder not otherwise specified (NOS) with depressive features following September 2013 VA examination. Subsequent VA treatment records note a diagnosis of depression and ongoing medication to treat anxiety. Accordingly, the first element of service connection—a current disability, classified here as an acquired psychiatric disability, to include anxiety and depression—has been met. As to the second element, the Veteran has identified the various circumstances of his service in Southwest Asia during the Gulf War as related to his psychiatric disability, to include encounters with armed enemy combatants, witnessing the death of a child, and an incident when his convoy broke down overnight. See, e.g., December 2013 VA Form 21-0781; September 2013 VA examination; February 2003 PTSD questionnaire. The record does not directly corroborate the Veteran’s testimony regarding the reported in-service events, to include combat participation. Rather, service personnel records (SPRs) denote the Veteran’s in-service assignment as a food service specialist, such that combat participation is inconsistent with the nature of his occupation. See also DD Form-214 (absent reports of combat decorations). However, a veteran is competent to report that which he perceives through his senses, including events capable of observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s SPRs confirm his service in Saudi Arabia from approximately December 1990 to April 1991, during the Gulf War. Moreover, service treatment records (STRs) note ongoing social impairment following this period of service. See STRs dated May 1996 (noting the Veteran’s involvement in an altercation); December 1997 (noting ongoing familial problems). During the October 2018 hearing, the Veteran’s spouse also offered testimony as to an observable change in his personality and conduct following his service in Southwest Asia, to include social withdrawal and sleep impairment. In interpreting the evidence in the light most favorable to the Veteran, it is found that the second Shedden element has been met. As such, the appeal may be granted upon the finding of a causal nexus between the Veteran’s current disability and his military service. There is one opinion of record on this point. Following September 2013 VA examination, the Veteran’s examiner concluded that it was at least as likely as not that his current psychiatric disability was caused by or the result of service. In doing so, the examiner noted that there was no evidence of mental disturbance prior to service, and the Veteran’s reported Gulf War events were consistent with his location and duties at that time. Moreover, symptoms of hyperarousal, irritability, and depression have existed “since the war.” Thus, a nexus was asserted at that time. This opinion is probative evidence of a nexus in this case. Importantly, the VA examiner offered a definitive nexus opinion as supported by an extensive review of the Veteran’s military and medical histories, including the nature and onset of his current symptoms. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). The examiner also possesses the requisite expertise to render a competent opinion regarding the etiology of the Veteran’s disability and had sufficient facts and data on which to base his conclusions. Moreover, there are no negative opinions of record for consideration. Thus, the preponderance of the evidence weighs in favor of the appeal, the benefit-of-the-doubt doctrine is for application, and service connection for an acquired psychiatric disability, to include anxiety and depression, is hereby granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.