Citation Nr: 21064792 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-32 243 DATE: October 21, 2021 ORDER The issue of entitlement to service connection for a right hip disability has been withdrawn. The issue of entitlement to service connection for a right ankle disability has been withdrawn. The issue of entitlement to service connection for a right foot disability has been withdrawn. The issue of entitlement to service connection for right upper extremity peripheral neuropathy has been withdrawn. The issue of entitlement to service connection for left upper extremity peripheral neuropathy has been withdrawn. The issue of entitlement to service connection for right lower extremity peripheral neuropathy has been withdrawn. The issue of entitlement to service connection for left lower extremity peripheral neuropathy has been withdrawn. The issue of entitlement to service connection for right upper extremity carpal tunnel syndrome has been withdrawn. The issue of entitlement to service connection for left upper extremity carpal tunnel syndrome has been withdrawn. The issue of entitlement to service connection for erectile dysfunction has been withdrawn. The issue of entitlement to service connection for a heart disability has been withdrawn. The issue of entitlement to service connection for a bilateral eye disability, to include blurred vision has been withdrawn. The issue of entitlement to service connection for a kidney disability has been withdrawn. REMANDED Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for diabetes mellitus is remanded. FINDING OF FACT On April 9, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the appeal concerning the issues of entitlement to service connection for a right hip disability, a right ankle disability, a right foot disability, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, carpal tunnel syndrome of the right upper extremity, carpal tunnel syndrome of the left upper extremity, erectile dysfunction, a heart disability, a bilateral eye disability, and a kidney disability is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a right hip disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to service connection for a right ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to service connection for a right foot disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of entitlement to service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the issue of entitlement to service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the issue of entitlement to service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the issue of entitlement to service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the issue of entitlement to service connection for carpal tunnel syndrome of the right upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the issue of entitlement to service connection for carpal tunnel syndrome of the left upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of the issue of entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 11. The criteria for withdrawal of the issue of entitlement to service connection for a heart disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 12. The criteria for withdrawal of the issue of entitlement to service connection for a bilateral eye disability, to include blurred vision have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 13. The criteria for withdrawal of the issue of entitlement to service connection for a kidney disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1982 to April 1996. The Veteran appeared at an April 2021 hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence of record indicates that in addition to the Veteran's claimed depression, the Veteran has been diagnosed with posttraumatic stress disorder (PTSD), the issue of entitlement to service connection for depression has been expanded to include any diagnosed psychiatric disability. Withdrawal 1. Entitlement to service connection for erectile dysfunction 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a heart disability 4. Entitlement to service connection for a bilateral eye disability, to include blurred vision 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities 6. Entitlement to service connection for bilateral upper extremity carpal tunnel syndrome 7. Entitlement to service connection for a right ankle disability 8. Entitlement to service connection for a kidney disability 9. Entitlement to service connection for a right foot disability The Board may dismiss any appeal which does not 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 the authorized representative. 38 C.F.R. § 20.204. At the April 2021 Board hearing, the Veteran, through the representative, withdrew the claims concerning the issues of entitlement to service connection for a right hip disability, a right ankle disability, a right foot disability, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, carpal tunnel syndrome of the right upper extremity, carpal tunnel syndrome of the left upper extremity, erectile dysfunction, a heart disability, a bilateral eye disability, and a kidney disability. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals concerning the issues of entitlement to service connection for a right hip disability, a right ankle disability, a right foot disability, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, carpal tunnel syndrome of the right upper extremity, carpal tunnel syndrome of the left upper extremity, erectile dysfunction, a heart disability, a bilateral eye disability, and a kidney disability, and those appeals are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is remanded. The Veteran asserts that he has a psychiatric disability as a result of exposure to a terrorist attack in West Berlin in 1985. The service personnel records show that the Veteran was awarded a Purple Heart. Therefore, the presence of an in-service stressor is conceded. At a November 2020 VA examination, the examiner diagnosed PTSD and severe alcohol use disorder. The examiner stated that the Veteran's described stressor met the diagnostic criterion for PTSD, and the Veteran's indicated symptoms met diagnostic criteria for PTSD. However, as the available medical treatment records did not indicate a mental health diagnosis of treatment while in service, and there was no consistent report of ongoing mental health issues since service, there was no nexus between service and the Veteran's current symptoms. The Board notes that the VA examiner's negative nexus opinion was based on the lack of treatment in service. However, the lack of treatment or complaints of a psychiatric disability in service is not persuasive evidence that a current psychiatric disability was not caused by active service. An examination is inadequate where the examiner does not comment on the Veteran's reports, but instead relies on an absence of medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, remand is required to schedule the Veteran for a VA examination for an etiology opinion that is supported by sufficient rationale. 2. Entitlement to service connection for diabetes mellitus is remanded. Service connection may be established for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be established on a secondary basis where it is shown that a service connected disability has aggravated a nonservice connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts that he has diabetes mellitus that was either caused by or aggravated by service-connected hypertension. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). On remand, the Veteran should be provided with a VA examination to obtain an etiology opinion regarding his diagnosed diabetes mellitus, and whether it has been caused or aggravated by a service-connected disability. The matters are REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain all outstanding VA and private treatment records. All attempts to locate those records must be documented in the claims folder. 2. Then, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the nature and etiology of any psychiatric disability. The examiner should elicit complete history from the Veteran. The examiner must review the claims file and should note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current psychiatric disability. The examiner should specifically state whether or not each criterion for a diagnosis of PTSD is met. The examiner is to be informed that as the Veteran is a Purple Heart recipient, an in-service stressor has been conceded. As to each pertinent disability identified on examination, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that each psychiatric disability, to include PTSD, had its onset in service, was aggravated by service, or is otherwise related to any incident of service. If the diagnostic criteria to support a diagnosis of PTSD have been satisfied and a diagnosis of PTSD is deemed appropriate, the examiner must comment upon any link between the current symptomatology and any of the in-service stressors reported by the Veteran. The examiner must specifically state whether PTSD is present due to the Veteran's fear of hostile military or terrorist activity during service of the type contemplated by 38 C.F.R. § 3.304(f)(3). The examiner should not base the opinion solely on the lack of treatment or complaint in service. The rationale for all opinions expressed should be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of diabetes mellitus. The examiner must review the claims file and should note that review in the report. A complete history should be elicited from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that diabetes mellitus had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that diabetes mellitus was caused by the service-connected disabilities, to include service-connected hypertension. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that diabetes mellitus has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include service-connected hypertension. If it is determined that there is another likely etiology for diabetes mellitus, that should be stated. The examiner should not base the opinion solely on the lack of treatment or complaint in service. Any opinion expressed should be accompanied by a complete rationale. The examiner must consider the Veteran's statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.