Citation Nr: 21070183 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-23 984 DATE: November 23, 2021 ORDER The appeal to reopen the claim for entitlement to service connection for vision loss is dismissed. Entitlement to service connection for an acquired psychiatric disability is granted. Entitlement to service connection for alcoholism is granted. FINDINGS OF FACT 1. At his March 5, 2021, hearing, the Veteran withdrew the appeal to reopen the claim for entitlement to service connection for vision loss. 2. The evidence of record supports finding that the Veteran's psychiatric disability occurred in, or is the result of, his period of active duty service. 3. The evidence of record supports finding that the Veteran's alcoholism is secondary to service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal to reopen the claim for entitlement to service connection for vision loss are met. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018) 2. The criteria for entitlement to service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for alcoholism are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was conducted via video conference in conjunction with the RO in St. Petersburg, Florida. A transcript of this hearing is contained within the electronic claims file. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Dismissal For oral withdrawals of issues made at a hearing, the withdrawal may be made by a veteran or by an authorized representative and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree, 891 F.3d at 1012; DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011). At the hearing, the undersigned Veterans Law Judge (VLJ) stated that the "issue of new and material evidence for service connection for vision loss has been withdrawn. Have I characterized [this issue] correctly?" March 5, 2021, Hearing Transcript (Tr.) at 2. The Agent for the Veteran replied in the affirmative. The VLJ then turned to the Veteran: "[D]o you understand that with regard to the withdrawal of the vision loss claim that you will lose your effective date thatthat you may have obtained had you prevailed?" Id. The Veteran replied, "Yes, Your Honor." Id. The Board is satisfied that the elements for an oral withdrawal of an issue have been satisfied. The colloquy between all three parties was explicit, unambiguous, and the Veteran clearly understood the consequences of his withdrawal as explained to him by the VLJ. Thus, the appeal to reopen the claim for entitlement to service connection for vision loss is dismissed. See Acree, 891 F.3d at 1012. Service Connection For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc); 38 C.F.R. § 3.310. 1. Entitlement to service connection for an acquired psychiatric disability is granted. There are a few preliminary matters for this issue that require discussion. First, the Veteran originally claimed entitlement to service connection for posttraumatic stress disorder (PTSD), chronic anxiety, depression, isolation, alcohol disorder, and an overarching "mental health disorder." At the hearing, the VLJ combined these into one claim for an overarching acquired psychiatric disability. Tr. at 2. Thus, that issue has been recharacterized as it appears on this Decision's first page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that a psychiatric claim must be considered a claim for any mental disability that may be reasonably encompassed). He also noted that the issues developed for appeal included whether new and material evidence had been received to reopen the previously denied psychiatric and vision loss claim. Tr. at 2. As will be explained, as to the psychiatric claim, there was no prior final denial requiring the submission of such evidence. Ordinarily, VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). That general rule gives way, however, to the exception laid out in subsection (b), which states that "[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." The psychiatric and vision claims were denied in an April 2015 Rating Decision, and the Veteran was notified in a May 1, 2015, letter. The decision lists that it reviewed VA medical center (VAMC) records as late as April 2015, and one of the reasons listed for the denial of the Veteran's claim for posttraumatic stress disorder (PTSD) was lack of a formal diagnosis. In December 2015, there were additional VAMC records from that same month and year, pertaining solely to the Veteran's psychiatric treatment. They show that he was being treated for, among other things, PTSD. The Board finds that the December 2015 VAMC records are new and material and that they were associated with the electronic claims file prior to the expiration of the appellate period from the May 1, 2015, Decision Letter. Thus, that evidence tolled the finality of April 2015 decision until VA issued the August 2016 Rating Decision now on appeal. Therefore, this claim now does not require the submission of new and material evidence and is considered an original one for service connection. See 38 C.F.R. § 3.156(a)(b); see also Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005) (per curiam) ("[A]lthough the history behind § 3.156 is silent regarding whether the definition found in paragraph (a) applies to paragraph (b), it is logical the terms "new" and "material" have the same meaning throughout the entire section."). Unlike a claim for service connection for any other psychiatric disability, which are subject to normal requirements, a claim of service connection for PTSD requires different elements. To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis in accordance with the Diagnostic and Statistical Manual, Fifth Edition (DSM-5); (2) credible supporting evidence that the claimed, in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). With respect to the second element, where the claimed stressor is unrelated to combat, lay testimony alone generally is not sufficient to establish that an in-service stressor occurred; it must be corroborated by credible supporting, evidence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Lay testimony alone may be sufficient where (1) a veteran was diagnosed with PTSD during service with a stressor related to that service; (2) a veteran qualifies as a combat veteran under 38 U.S.C. § 1154 with a stressor related to that service; (3) there exists a stressor related to fear of hostile military or terrorist activity; and (4) where the veteran was a prisoner of war under 38 C.F.R. § 3.1(y) with a stressor related to that prisoner-of-war experience. 38 C.F.R. § 3.304(f)(1)(4). The Veteran alleges three events that serve as the basis for this claim. First, he alleges that, as part of the 6917th Security Command, at the San Vito dei Normani Air Base, Italy, there was a Russian Backfire Bomber that entered the base and was five minutes away. Tr. at 3. According to the Veteran, he eventually discovered that the Bomber wanted to defect and ended up flying off to an undisclosed base. Id. Second, the Veteran describes an incident where an intoxicated commander forcefully came into the Veteran's working area (despite the commander not having the proper security clearance) with four national citizens, giving them a tour. Id. This caused the Veteran and fellow servicemembers to "burn, cover, and hide everything [they] could." Id. Third, the Veteran endorses marital problems with his then-current wife, who wrote four bad checks and was caught playing "strip poker" in the male dormitory. Id. at 4. Because of his wife's actions, the Veteran indicates that he faced reprimands. Id. The Veteran argues that his psychiatric problems began during service and physically manifested with gastrointestinal problems and an eventual "peptic ulcer." Id. Service treatment records (STRs) from December 1980 show that the Veteran complained of waking up and feeling like he was going to vomit. The assessment was gastroenteritis. In January 1983, there were multiple complaints of stomach pain with the Veteran awaking fourfive nights to vomit. He was given Mylanta, and the assessment was acute gastritis. A September 1984 Medical Statement reveals that, at the behest of the Veteran's commander, a psychiatric evaluation was performed to determine if the Veteran was fit to continue service. In pertinent part, the examiner notes the commander's complaint that the Veteran appeared for duty in July 1984 in a bizarre manner, namely dressed in bright clothing (nonuniform-conforming) and with makeup. The Veteran admits to this behavior but claims it was done in jest. He attempted to divest the examiner of any notion that he was a "crossdresser"; rather, he explained that he is the "'Michael Jackson'" of the squadron. The examiner took this to mean that the Veteran sees himself as a "dramatic entertainer." The Veteran specifically disclaimed any psychological stress other than the "problems his wife [was] causing him" at that point in time; although, those specific problems were not further identified. Overall, the examiner stated the following: Mental status examination reveals cooperative but highly dramatic and immature behavior. There are no specific disorders of mood, affect, thinking, perception, or cognition. Personality features of immature and histrionic type appeared present. Some elements of effeminacy are present. These appear organized at the characterological level and seem to represent psychological internalizations of early relationships (particularly the mother). Psychological testing reveals intelligence to be in the normal range. Personality assessment indicates easy frustration, overactivity, and impulsivity. The Axis I diagnosis was "Marital Problem[s]," and the Axis II diagnosis was mixed personality disorder with immature and histrionic features. A review of the Veteran's military personnel records (MPRs) confirms that his career started with great potential but then slowly digressed due to multiple infractions. From September 1980 to February 1983, the Veteran received glowing reviews for his performance. Beginning with his evaluation from February 1983 to October 1983, and with all other subsequent evaluations, the Veteran's performance evaluations declined. Negative comments include a lack of motivation, the need to take financial responsibility, failure to respond positively to counseling, an overall lack of maturity; etc. A December 1984 letter notified the Veteran that it was proposed that he be discharged form service for a pattern of minor disciplinary infractions. In the year 1984 alone, the Veteran had ten infractions consisting of leaving his place of duty without permission, going absent without leave , failing to report to his appointed place of duty, being denied the Air Force Good Conduct Medal, being reduced to Airman First Class, not showing for promotional testing, working under the influence of alcohol, missing mandatory briefings, and failing to accept personal and financial responsibility. The various VAMC records show that the Veteran is treated for PTSD and other non-PTSD psychiatric conditions. A March 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner diagnosed the Veteran with unspecified trauma and stressor related disorder and alcohol abuse. In opining that the former diagnosis was related to the Veteran's articulated stressors, the examiner stated that: Veteran had no mental health issues prior to military service. He now has clear symptoms of Unspecified Trauma and Stressor Related Disorder, identified in the report, and includes the claimed symptoms. However, this diagnosis is not confined to the claimed marital difficulties during service. Rather, Veteran's diagnosis of Unspecified Trauma and Stressor Related Disorder is related to multiple events, documented in the report, that occurred during military service. There also is of record a July 2021 psychiatric evaluation from the Veteran's private psychologistDr. R.S.who also diagnosed the Veteran with unspecified trauma and stressor related disorder. Dr. R.S. states that personality disorders are Axis II diagnoses that do not resolve. Because the Veteran currently does not have an Axis II diagnosis, he believes that the Veteran's in-service Axis I diagnosis of "marital problems" and Axis II diagnosis of a personality disorder were incorrect and that his current Axis I diagnosis manifested during active duty service. The Board recognizes that the Veteran has multiple psychiatric diagnosesboth PTSD and non-PTSD. Thus, the Board finds that the first element of service connection for a claim for PTSD and any other non-PTSD diagnosis has been established. See 38 C.F.R. § 3.303(a), 3.304(f). While PTSD and unspecified trauma and stressor related disorder sound synonymous, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), specifically is incorporated into VA regulations, and it recognizes the two as separate diagnoses. 38 C.F.R. § 4.125(a). A claim for PTSD and one for any other psychiatric disability requires different standards. "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 84344 (1984) (footnote omitted). Here, Congress has delegated VA broad rule-making authority for regulations covering "the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under [VA compensation] laws." 38 U.S.C. § 501(a)(1). Congress also has not enacted any legislation prescribing the requirements for a claim of PTSD, and VA's own regulations prescribing different evidentiary standards for PTSD and non-PTSD psychiatric disabilities is not arbitrary, capricious, or manifestly contrary to the authorizing statute. Compare 38 C.F.R. § 3.304(f) (requirements for service connection for PTSD), with 38 C.F.R. § 3.303(a) (requirements for service connection generally). Thus, the Board must analyze separately PTSD and any other non-PTSD diagnoses. As to PTSD, the Board finds that evidence does not satisfy the second element. As noted above, because the Veteran's alleged stressors are unrelated to combat, lay evidence alone is not sufficient; it must be corroborated by credible, supporting evidence. See Cohen, 10 Vet. App. at 142. That is all the Board has in this case. The only pieces of evidence regarding the Veteran's three articulated stressors of the defecting Russian bomber, the intoxicated commanding officer, and his wife's financial misdoings are his lay statements. There is no corroborating evidence concerning the first two alleged stressors. While the military records confirm that the Veteran was having marital problems and that he received reprimand for, among other reasons, financial irresponsibility, it does not disclose that it was due to this wife's actions. Without any independent corroboration, the Board cannot find that the second element for PTSD has been established. Thus, that claim is denied. See 38 C.F.R. § 3.304(f). Turning to a claim for any other non-PTSD psychiatric diagnosis, the evidentiary requirement, as noted above, simply is that for regular service connection, i.e., lay statements can be enough. "[I]n non-PTSD cases, a physician's opinion can sometimes provide evidence both of service incurrence or aggravation and of a causal nexus between a current condition and service." Moreau v. Brown, 9 Vet. App. 389, 397 (1996). Here, the 2019 VA examiner specifically stated that the rendered diagnosis of unspecified trauma and stressor related disorder was due to the Veteran's reported events in service other than his marital problems. In other words, the examiner found credible that these statements could form a basis for the diagnosis. The Board will find that this medical opinion satisfies both the second and third element of service connection. While there is no evidence to corroborate the Veteran's specific allegations, there also is no evidence that renders his statements void of credibility, so the VA opinion is worthy of full probative value. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that a opinion based on an accurate, credible, self-reported history is worth full probative weight). Thus, the Board finds that the second and third elements of service connection have been established. See Romanowsky, 26 Vet. App. at 293; Moreau, 9 Vet. App. at 397; 38 C.F.R. § 3.303(a). Alternatively, Dr. R.S. has opined that the Veteran's psychiatric disability began manifesting in service and that his Axis II diagnosis improperly was rendered. In his view, the Veteran clearly began manifesting symptoms during service, which have continued into the present. There is no competent or credible medical opinion to contradict Dr. R.S.'s findings, so the Board has no reason not to afford it full probative weight as well. Thus, the Board alternatively could find that the Veteran's psychiatric disability began in service, satisfying the second and third element of service connection. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record supports the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, other than PTSD, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 2. Entitlement to service connection for alcoholism is granted. While the VLJ consolidated the psychiatric symptoms claimed into one issue, an alcohol abuse or substance abuse disability, separately may be service connected only if such was acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) ("We therefore conclude, based on the language of the statute and the pertinent legislative history, that 38 U.S.C. § 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability."). In the March 2019 VA psychiatric examination, the examiner stated that the Veteran's alcohol abuse, although in remission, was "secondary to unspecified trauma and stressor related disorder. The elements for secondary service connection have been established. The Veteran has a diagnosis of alcohol abuse, he now is service connected for a psychiatric disability, and latter has caused the former. Thus, all elements have been satisfied. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record supports the Veteran's claim for entitlement to service connection for alcohol abuse, his appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.310. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.