Citation Nr: 20022182 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-63 032 DATE: March 31, 2020 ORDER The issue of service connection for a sleep disorder is dismissed. The issue of an initial rating in excess of 10 percent for tinnitus is dismissed. The issue of an effective date earlier than September 18, 2017, for the grant of service connection for tinnitus is dismissed. REMANDED The issue of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The issue of service connection for hepatitis C is remanded. The issue of service connection for liver scarring is remanded. The issue of service connection for headaches, to include as secondary to service-connected tinnitus, is remanded. FINDINGS OF FACT 1. On January 2, 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of service connection for a sleep disorder. 2. On January 2, 2020, prior to the promulgation of a decision on the appeal, the Veteran withdrew the appeal of the issue of entitlement to an initial rating in excess of 10 percent for tinnitus. 3. On January 2, 2020, prior to the promulgation of a decision on the appeal, the Veteran withdrew the appeal of the issue of entitlement to an effective date earlier than September 18, 2017, for the grant of service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for dismissal of service connection for a sleep disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for dismissal of an effective date earlier than September 18, 2017, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to February 1982. This matter comes before the Board of Veterans’ Appeals (Board) from May 2015 and December 2017 rating decisions. Dismissed Appeals 1. Service connection for a sleep disorder 2. An initial rating in excess of 10 percent for tinnitus 3. An effective date earlier than September 18, 2017, for the grant of service connection for tinnitus In September 2019 correspondence, the Board notified the Veteran and his attorney of a jurisdictional defect in his case. Specifically, the letter explained that as to the issues of service connection for a sleep disorder, hepatitis C, and liver scarring, and the initial rating and assigned effective date for tinnitus, his substantive appeal was defective because it contained no arguments related to errors of fact or law made by the agency of original jurisdiction (AOJ) in reaching its determinations with respect to these issues. The Board enclosed a summary of the relevant laws governing substantive appeals as set forth in the Code of Federal Regulations (C.F.R.) and provided a 60-day period for response. In correspondence received in January 2020, the Veteran’s attorney advised the Board that his “office filed a Brief in Support of Claim on [August 16, 2018], in response to Letter dated [September 19, 2019].” The attorney enclosed a letter from the Veteran, which included argument related to his hepatitis C and liver scarring claims. The Veteran also expressed his desire to withdraw his claims related to sleep apnea and tinnitus. 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn this appeal as to the issues of service connection for a sleep disorder and the initial rating and effective date assigned for tinnitus and, 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 as to these issues and they are dismissed. REASONS FOR REMAND 1. The issue of service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran contends he has PTSD due to events during military service. In this case, however, the claim for PTSD is appropriately broadened to include the diagnosed bipolar disorder disability noted in post-service treatment records. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), (holding that although a claim identifies only a single diagnosed disorder, it must be considered a claim for any disability that may reasonably be encompassed by that claim). The Veteran has described two in-service stressors. First, he indicated that in October 1981, he was a passenger in an armored personnel carrier (APC) during a training exercise at Fort Polk, Louisiana, when some sort of accident occurred, which killed the driver, either by decapitating him or crushing him. He recalled that the last name of the person crushed by the APC was Perez. In August 2017, the AOJ received a response from the U.S. Army and Joint Services Records Research Center (JSRRC), reporting they were able to locate documentation that the 3rd Battalion, 11th Infantry was stationed at Fort Polk, Louisiana, but unable to locate copies of unit records submitted by the 3rd Battalion, 11th Infantry for the 1981 time period. In addition, the JSRRC was unable to locate documentation verifying a casualty assigned to the 3rd Battalion, 11th Infantry with an armored vehicle at Fort Polk, Louisiana, during the 1980 to 1984 time period. The JSRRC advised the AOJ that there may be a criminal investigation report filed on the reported incident. In October 2017, the AOJ received a response from the U.S. Army Crime Records Center that there was no record of the reported incident. In support of his second reported stressor, the Veteran submitted a copy of a Certificate of Achievement and a Letter of Appreciation, recognizing his service as a member of the 3rd Battalion (M), 11th Infantry in November and December 1980 when the unit was deployed to Fort Chaffee, Arkansas, in support of the Cuban Resettlement Project. The records recognized the 3rd Battalion as being the best of the eleven battalions to serve there, and appear to recognize the Veteran individually for a high level of professionalism, morale, and esprit de corps. The Veteran asserts he was ordered to “be aggressive and instill fear in the compound, and that’s exactly what I did.” A February 2015 VA psychiatry note reflects his report that during the Cuban refugee movement at Fort Chaffee, he and others were tasked with “devastating” the refugees and ordered to harass them “physically” to keep them in control. He admitted treating the refugees “like they were animals,” stating he felt morally conflicted about his actions but committed them anyway. In statements to medical personnel at VA clinics and a correctional facility, the Veteran also reported participating in combat. During a June 2011 evaluation by a private doctor for his appeal related to disability benefits from the Social Security Administration (SSA), he reported a past medical history that included an injury to his right upper arm where he has a large scar caused by shrapnel during combat. The Veteran served during a period of peacetime; his records show he did not participate in any combat activity during his military service. 38 C.F.R. § 3.2. His statements that he did participate in combat and was wounded in combat are not credible. Finally, in August 2010 and September 2010, he disclosed to a VA social worker and psychiatrist, respectively, a history of childhood physical abuse while growing up in different foster homes since age five, becoming tearful as he described his childhood as “very hard.” During a June 2011 psychological evaluation for his SSA disability claim, he reported that having a difficult childhood, and having traumatic memories of being raised in foster homes had not helped his depression. In August 2018, the Veteran’s attorney submitted a VA Mental Disorders Disability Benefits Questionnaire (DBQ) completed in May 2018 by a private psychologist, H. Henderson-Galligan, Ph.D., from Indiana. The report indicates Dr. Henderson-Galligan reviewed the Veteran’s claims file and VA records and performed a mental status examination; however, as the Veteran lives in California, it is unclear how the examination took place. The report details the Veteran’s belief that his “issues started while in basic training in military service,” and included in-service nightmares, drinking a lot, wanting to get out of the military, and being told to harass Cuban refugees. Dr. Henderson-Galligan opined that the Veteran’s bipolar disorder more likely than not began in military service and continued uninterrupted to the present and is aggravated by his service-connected tinnitus. To the extent the August 2018 private medical opinion attributes the Veteran’s current bipolar disorder to military service, the Board reiterates that the reported casualty by an APC has not been verified; the Certificate of Achievement and Letter of Appreciation appear to be inconsistent with the Veteran’s reports that he mistreated refugees; and the opinion does not address his reports of childhood physical abuse while in foster care or the reported onset of bipolar disorder symptoms occurring around the time of his divorce in 2000 or 2003, as reported to other treatment providers. Because the Veteran’s participation in the Cuban Resettlement Project is verified by his service personnel records, however, the AOJ should arrange for a VA examination to determine whether any current psychiatric disorder had its onset during military service or is related to military service. Also, there appears to be outstanding medical records pertinent to the Veteran’s claim. During a January 2011 crisis assessment while incarcerated, the Veteran reported he was hospitalized briefly for mental illness after his release from military service and next hospitalized in 2003 at Good Samaritan after he hurt someone after having a flashback. During a previous VA psychiatric visit in September 2010, he reported a history of being in jail off and on for drinking and driving under the influence and in 2004 for five months for assault. The AOJ should ask the Veteran to provide records of psychiatric treatment from shortly after separation from service and from Good Samaritan Hospital. 2. The issues of service connection for hepatitis C and liver scarring are remanded. Following receipt of the Veteran’s claim of service connection for hepatitis C and liver scarring, the AOJ notified the Veteran of risk factors for hepatitis C infections recognized by the medical community and asked him to identify which risk factors applied to him. He did not respond to the request for this information. VA treatment records show the Veteran was diagnosed with hepatitis C in September 2010 after routine laboratory testing when he established medical care. Other VA treatment records reflect a remark by the Veteran’s physician that his hepatitis was “most likely contracted from tattoos while in prison,” and his disclosure of experimenting with cocaine and multiple other illicit drugs while in service after since then. A June 2011 private medical evaluation report for the Veteran’s SSA disability benefits appeal noted the Veteran’s “striking tattoos on the torso and upper and lower extremities.” After the Board notified the Veteran and his attorney in September 2019 that his appeal as to his service connection claims for hepatitis C and liver scarring (among other issues) may be dismissed because he had not submitted any evidence or argument regarding these issues, the Veteran explained why he believed service connection was warranted for these disabilities. He reported he contracted hepatitis C during military service from “inoculation injections by pneumatic force,” which were given to 80 to 100 men at a time without changing needles between injections. The AOJ should schedule the Veteran for a VA examination to determine the etiology of his hepatitis C and any chronic liver damage. 3. The issue of service connection for headaches, to include as secondary to service-connected tinnitus, is remanded. In a March 1980 enlistment report of medical history, the Veteran endorsed a history of frequent or severe headaches. A physician’s summary detailed the Veteran had occasional headaches, only with extremely hot weather, that occur once every two months and are of short duration and relieved by aspirin. Among VA treatment records dating from May 2010 to November 2017, gastroenterology records in April and May 2015 show the Veteran experienced a brief period of having mild headaches that resolved quickly and did not return. Neither VA nor private treatment records currently associated with the claims file document a chronic headache disability. The Veteran’s attorney submitted a VA Headaches Disability Benefits Questionnaire completed by a private physician, H. Skaggs, M.D., who practices in Indiana. Dr. Skaggs noted he spoke to the Veteran in May 2018, and the Veteran reported having two to three headaches each week brought on by service-connected tinnitus and stress associated with his claimed bipolar disorder disability. The Veteran rated his headache pain as 7 or 8 out of 10 in severity and stated he must lie down in a dark, quiet room for hours for relief. Dr. Skaggs opined that the Veteran’s tinnitus and bipolar disorder more likely than not both cause and permanently aggravate the Veteran’s headaches. In support of the conclusion, Dr. Skaggs indicated that research has shown that when there is damage to the auditory system resulting in tinnitus, this can also cause headaches, and patients with mental disorders are more likely to develop headaches because pain and mood are regulated by the same part of the brain. Because the existence of a current, chronic headache disability as described in Dr. Skagg’s report appears to be inconsistent with the VA and private treatment records currently associated with the claims file, the AOJ should obtain ongoing VA treatment records dating since November 2017 and arrange for a VA examination to determine whether the Veteran has a current headache disability related to service or to a service-connected disability. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain the following records: a) All records associated with a psychiatric hospitalization from the early 1980s, shortly after the Veteran’s separation from service. b) All records of a psychiatric hospitalization at Good Samaritan Hospital from approximately 2003 or 2004. c) Ongoing treatment records from the VA Clinic in San Jose, California dating since November 2017. d) Any other medical records identified by the Veteran pertinent to his claims. 2. Schedule the Veteran for a VA examination with a psychiatrist or psychologist. Provide the Veteran’s entire electronic claims file and a complete copy of the Remand to the designated examiner for review. The reports of any indicated tests or studies must be associated with the examination report. Following a review of the claims file and examination, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder found on examination, to include bipolar disorder and/or PTSD, (a) had its onset during military service, (b) that any psychosis manifested to a compensable degree within one year of separation from service, or (c) is otherwise related to the Veteran’s military service. A detailed medical rationale must be provided for all opinions expressed. In rendering the requested opinion, the examiner is advised that the Veteran’s claimed stressor regarding a soldier killed by an armored personnel carrier has not been verified. However, service personnel records confirm his presence at Fort Chaffee, Arkansas in November and December 1980 during the Cuban Resettlement Projects. The Veteran has also reported a history of childhood physical abuse while growing up in foster care homes. In his enlistment report of medical history, the Veteran first checked “yes” regarding a history of depression or excessive worry, but changed his response to “no.” 3. Schedule the Veteran for a VA examination with an appropriate clinician to obtain a medical opinion regarding the nature and etiology of his hepatitis C disability, which was diagnosed in September 2010. Provide the entire electronic claims file and a complete copy of this Remand to the designated examiner for review. The reports of any indicated tests or studies must be associated with the examination report. To date, in statements to VA and/or private treatment providers or examiners, the following hepatitis C risk factors have been identified or claimed: military inoculations using shared needles or air guns; history of intranasal cocaine use; and tattoos on the Veteran’s torso, upper extremities, and lower extremities obtained while in prison. Following a review of the claims file and examination, the examiner should list any additional hepatitis C risk factors the Veteran identifies and provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current hepatitis C and any chronic liver damage is related to any in-service risk factor. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current headache disability. Provide the entire electronic claims file and a complete copy of this Remand to the designated examiner for review. The reports of any indicated tests or studies must be associated with the examination report. Following a review of the claims file and examination, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current headache disability (1) had its onset in service or is otherwise medical related to military service; or (2) is, (Continued on next page) or has been, aggravated by service-connected tinnitus. A medical rationale must be provided for all opinions expressed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.