Citation Nr: 21014533 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-16 723 DATE: March 12, 2021 ORDER Entitlement to service connection for a neck condition is dismissed. Entitlement to service connection for degenerative disc disease thoracolumbar spine (claimed as back) is dismissed. Entitlement to service connection for a left knee condition is dismissed. Entitlement to service connection for a right ankle condition is dismissed. Entitlement to service connection for a right foot condition is dismissed. Entitlement to service connection for a left foot condition is dismissed. Entitlement to service connection for mild nonproliferative diabetic retinopathy (also claimed as an eye condition) is dismissed. Entitlement to service connection for diverticulitis (also claimed as constipation) is dismissed. Entitlement to service connection for uterine fibroids is dismissed. Entitlement to service connection for dyschromia is dismissed. Entitlement to service connection for menopausal syndrome is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) as the result of military sexual trauma (MST) is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD) (also claimed as heart disease and congestive heart failure) is remanded. Entitlement to service connection for heart arrhythmias (claimed as palpitations) is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to a finding of total disability based on individual unemployability is remanded. FINDINGS OF FACT 1. In April 2020 correspondence, prior to the promulgation of a decision by the Board, the Veteran submitted correspondence stating that she wished to withdraw from appellate review her claims of entitlement to service connection for a neck condition, a low back disability, a left knee disability, a right ankle disability, right and left foot disabilities, diabetic retinopathy, diverticulitis/constipation, uterine fibroids, dyschromia, and menopausal syndrome. During a December 2020 Board hearing, the Veteran reiterated her request to withdraw the appeals on these matters. 2. An acquired psychiatric disorder is the result of military sexual assault (MST) during active military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of appeals for entitlement to service connection for a neck condition, a low back disability, a left knee disability, a right ankle disability, right and left foot disabilities, diabetic retinopathy, diverticulitis/constipation, uterine fibroids, dyschromia, and menopausal syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) as the result of military sexual trauma (MST) have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from June 1974 to June 1977. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the Veteran filed separate claims seeking service connection for PTSD and major depression. A claim for an acquired psychiatric disorder includes any disorder that is reasonably encompassed by the claimant’s symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, these claims are recharacterized as a claim of entitlement to service connection for an acquired psychiatric disorder, however diagnosed. This was discussed at the December 2020 hearing. Withdrawal A substantive appeal may be withdrawn any time before the Board promulgates a decision. Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.205. In April 2020 correspondence (received in May 2020), the Veteran indicated that she wanted to withdraw many of her claims pending before the Board. She noted that she wanted to withdraw her claim for service connection for dyschromia, diverticulitis, a neck condition, uterine fibroids, a left foot condition, a left knee condition, a right foot condition, diabetic retinopathy, a right ankle condition, r menopausal syndrome, and a back condition. She indicated that the withdrawal was made with the understanding that the Board would not decide on the issues and that the last decision from the RO would be final. She expressed clear intent to withdraw these claims on appeal. During the December 2020 Board hearing, the Veteran reiterated her request to withdraw these claims on appeal. As the Veteran has properly withdrawn these claims on appeal prior to a final Board decision, the Board no longer has appellate jurisdiction and can take no further action on this matter. 38 C.F.R. §§ 20.104, 20.205. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Establishing service connection for PTSD, specifically, requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A Veteran’s lay testimony alone may establish the occurrence of a claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran’s symptoms are related to the claimed stressor, and (3) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. See 38 C.F.R. § 3.304(f)(3). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304 (f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, there is no dispute that the Veteran is diagnosed with an acquired psychiatric disorder. Diagnoses of PTSD and MDD were of record throughout the appellate period. Notably, a November 2014 VA treatment note documented that the Veteran was diagnosed with PTSD and MDD by a VA psychiatrist. In addition, the Board finds credible the MST allegations made by the Veteran. The Veteran asserted in multiple statements and Board testimony that she experienced military sexual trauma during active service while stationed in Germany. The record shows that the Veteran’s statements were consistent throughout the appellate period. Further, those close to the Veteran, to include family, noted psychiatric changes following active service, as well as accounts of re-experiencing the sexual assault. Particularly, a November 2020 statement from Mr. DC, a service member who was stationed with and a friend of the Veteran, indicated that he saw the Veteran after the incident in Germany. He wrote that he saw the Veteran with her clothes torn and her crying. He indicated that he saw the bathroom door lying on the ground where the incident occurred. Mr. DC wrote that he saw the man who assaulted the Veteran in the military police car. There are no other findings, statements or other evidence of record that call into question the Veteran’s assertions. Thus, the history of events as provided by the Veteran are found credible, because they are internally consistent and there is nothing in the claims file which would call her general credibility into question. As noted, the account is corroborated by detailed lay statements. On March 2017 mental health questionnaire clarification, Ms. LB (the Veteran’s treating VA licensed clinical social worker) indicated that the Veteran was diagnosed with PTSD and MDD. Ms. LB indicated that the diagnosis of PTSD and MDD were attributed to the Veteran’s in-service military stressors. She noted that the Veteran experienced sexual trauma while in-service. She indicated that the Veteran hoped the military would lead a safer life for her, but it was the opposite. She wrote that the Veteran’s MST resulted in vulnerability when she experienced sexual harassment in the workplace. She concluded that the Veteran continued to have active symptoms of PTSD. As the Board has found the Veteran’s assertions to be credible and corroborated by other evidence of record, the VA treatment records and private opinion linking currently-diagnosed acquired psychiatric disorders to her period of active service are accepted as probative and dispositive of the issue. Accordingly, service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND CAD/Heart Arrhythmias The Veteran has not been afforded a VA examination with respect to her claimed CAD and heart arrhythmia conditions. On May 2013 statement, the Veteran wrote that her heart problems started while she was on active duty. She wrote that during her exit examination she was called back into the office because of her heart problems. She indicated that she continued to have heart problems after service. She noted that her claimed heart problems were related to her active duty service. In December 2020, the Veteran testified that she did not have any heart problems before entering service. She indicated that she noticed she had symptoms of a heart problem while doing physical training. She indicated that she had chest pains and shortness of breath during active duty service. She stated that when exiting service, during her final examination she was told she could die because of her heart problems. Furthermore, she indicated that her heart conditions were due to her now service-connected acquired psychiatric disorder. There is no medical opinion as to whether the Veteran’s claimed conditions are related to her military service or her now service-connected acquired psychiatric disorder. Where there is evidence of a current disability or persistent or current symptoms of a disability and an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). GERD/HTN/Diabetes In December 2020, the Veteran testified that her GERD, HTN, and diabetes were related to her now service-connected acquired psychiatric disorder. The Veteran indicated that her PTSD and MDD caused her alcoholism, and that her alcoholism then caused her HTN, GERD, and diabetes. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudicating the claim conditions. On remand, a VA examination should be scheduled and an opinion that addresses the nature and etiology of the Veteran’s GERD, HTN, and diabetes, including the theory on a basis to her service-connected acquired psychiatric disorder. TDIU The Veteran’s TDIU claim is inextricably intertwined with the service connection claims being remanded herein, as the outcome of such may impact the TDIU claim. Furthermore, the Board finds that the issue of TDIU is inextricably intertwined with the rating that will be assigned for the Veteran’s now service-connected acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA diabetes mellitus examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran’s diabetes mellitus was caused or aggravated by service or a service-connected disability. Any relationship between service-connected psychiatric disability, to include alcoholism, must be specifically addressed. A full and complete rationale for all opinions expressed is required. 3. Schedule the Veteran a VA heart conditions examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all current heart conditions; coronary artery disease and heart arrhythmias must be specifically addressed. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed heart conditions was caused or aggravated by service or a service-connected disability. The examiner must discuss the Veteran’s reports of cardiac symptoms in service. A full and complete rationale for all opinions expressed is required. 4. Schedule the Veteran for a VA GERD examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran’s GERD was caused or aggravated by service or a service-connected disability. Any relationship between service-connected psychiatric disability, to include alcoholism, must be specifically addressed. A full and complete rationale for all opinions expressed is required. 5. Schedule the Veteran for a VA hypertension examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by service or a service-connected disability. Any relationship between service-connected psychiatric disability, to include alcoholism, must be specifically addressed. Additionally, for purposes of opining, diabetes should be considered service-connected. A full and complete rationale for all opinions expressed is required. 6. After assigning a rating for the Veteran’s acquired psychiatric disorder and the completion of the above readjudicate her entitlement to TDIU. If any benefit sought remains denied, furnish a supplemental statement of the case and then return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.