Citation Nr: A21020051 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200403-80212 DATE: December 15, 2021 ORDER The appeal for entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for anxiety and/or depression is denied. FINDINGS OF FACT 1. In June 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal for entitlement to a TDIU. 2. The preponderance of the evidence of record is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that anxiety or depression began during active service, or is otherwise related to an in-service injury or disease, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for anxiety and depression are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1959 to July 1963. He testified before the undersigned at a virtual tele-hearing in June 2021. A transcript of the hearing is associated with the claims file. The rating decision on appeal was issued in March 2020 and constitutes an initial decision; therefore, the Appeals Modernization Act (AMA), applies. In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from his June 2021 hearing. 38 C.F.R. § 20.303. Withdrawal of Appeal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205.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. In the present case, the Veteran, in the presence of his attorney at his June 2021 Board hearing, expressed that he wanted to withdraw the appeal for entitlement to a TDIU. He was informed of, and articulated understanding of the consequences of this action. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for that issue and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Entitlement to service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), and is supported by findings on the examination report; (2) a link between current symptoms and an in-service stressor, as established by medical evidence; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a); Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). 1. Service connection for PTSD. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and a stressor event during active service; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). After a thorough review of the evidence, the Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Indeed, VA treatment records dated prior to and during the relevant appeal period do not show that the Veteran has ever been treated for or diagnosed with PTSD. Most recently, an August 2019 VA treatment record reflects that the Veteran specifically did not have PTSD. At his June 2021 Board hearing, the Veteran testified that he had never been diagnosed with PTSD. While the Veteran is competent to report symptoms, he is not competent to diagnose PTSD, or to determine that his symptoms represent manifestations of such a disability. An issue such as this is medically complex and requires knowledge of mental health issues and an interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, because the evidence of record includes no indication of a current PTSD diagnosis, and the Veteran has denied ever being aware of one, the benefit sought on appealentitlement to service connection for PTSDmust be denied. 2. Service connection for anxiety and depression. The Veteran also contends that he has anxiety and/or depression that is related to his period of active military service. Specifically, he contends that while stationed on the USS Enterprise during service, he witnessed three fellow sailors fall from the ship and drown. He testified at his June 2021 Board hearing that since the incident, he has experienced flashbacks when around water. He has also contended that his psychiatric condition may be due to his service-connected ear disabilities. See June 2021 Correspondence. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). The AOJ made a favorable finding that the Veteran has a diagnosis of generalized anxiety disorder. See March 2020 rating decision on appeal. The Board is bound by that favorable finding. Service treatment records do not show any complaints of, or treatment for any psychiatric issues. The Veteran had a normal psychiatric clinical evaluation on separation from service in July 1963. That stated, as noted above, the Veteran testified at his June 2021 Board hearing that he experienced an in-service stressorwitnessing the deaths of three fellow sailorsthat caused his present psychiatric disabilities. In this case, there is no evidence of such nexus, or link, other than the Veteran's lay statements. Although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of whether the Veteran's anxiety and/or depression are related to a stressor during military service is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Neither the Veteran nor his attorney are shown to have the necessary training and expertise to provide a competent opinion as to whether his psychiatric conditions are related to his military service. Aside from the Veteran's lay statements, no medical evidence is of record showing any link between the Veteran's claimed in-service stressor and his current anxiety disorder. The Board further finds that service connection also cannot be granted on a secondary basis, insofar as there is no medical evidence, other than the Veteran's lay statements, linking his current psychiatric conditions to his service-connected ear conditions. As above, the Veteran is not competent to establish that association. In so finding, the Board notes that the Veteran did not provide any details of his claimed stressor or his contention that his psychiatric conditions are related to his service-connected ear disabilities prior to the March 2020 decision on appeal. There is thus nothing in the Veteran's medical history that the Board finds would have triggered VA's duty to obtain a medical examination or opinion prior to the decision on appeal. Under the AMA, the duty to assist does not attach at the Board review level, and therefore, no further development may be ordered by the Board at this time. 38 C.F.R. § 3.159(c). The Veteran's attorney indicated at the June 2021 Board Hearing that he would be obtaining a private psychological assessment. If such is obtained, the Veteran may file a Supplemental Claim and submit this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Given the foregoing, the Board concludes that the weight of the evidence is against the claim of service connection for anxiety and depression and there is no doubt to be resolved. Thus, service connection for anxiety and depression is not warranted, either on a direct or secondary basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.