Citation Nr: 21015855 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-04 458 DATE: March 18, 2021 ORDER 1. Entitlement to service connection for a cervical spine disability has been withdrawn and is dismissed. 2. Entitlement to service connection for Graves’ disease has been withdrawn and is dismissed. REMANDED 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), is remanded. FINDINGS OF FACT 1. In June 2020, the Veteran, through his attorney, explicitly and unambiguously expressed his intent to withdraw the claim for service connection for a cervical spine disability. 2. In June 2020, the Veteran, through his attorney, explicitly and unambiguously expressed his intent to withdraw the claim for service connection for Graves’ disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for the cervical spine disability by the Veteran through his representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the claim for service connection for Graves’ disease by the Veteran through his representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1979 to April 1981. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2017 videoconference hearing, and a transcript of the hearing has been associated with the claims file. In June 2018, the Board of Veterans’ Appeals (Board) denied the Veteran’s claims for service connection for a cervical spine disability, Graves’ disease, and posttraumatic stress disorder (PTSD). The Veteran appealed that decision to the United States Court of Appeals for Veterans’ Claims (Court). In March 2019, the Court granted a Joint Motion for Remand (JMR) based on the Board’s error in finding that the VA satisfied its duty to assist in obtaining outstanding service treatment records or verifying the Veteran’s in-service stressor for his PTSD claim. Additionally, the Court found that the Board failed to determine whether a VA examination was warranted for the Veteran’s PTSD claim. In June 2020, the Veteran, through his attorney, waived any right he might have under Stegall v. West for evidence development regarding potential in-service stressor events. 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for Graves’ disease 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. A withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a June 2020 letter, the Veteran, through his attorney, informed the Board that he wished to withdraw the claims for service connection for a cervical spine disability and Graves’ disease. Thus, the Veteran has withdrawn the aforementioned claims, and the Board does not have jurisdiction to review the claims for service connection for a cervical spine disability and Graves’ disease, and the claims are dismissed. REASONS FOR REMAND 3. Entitlement to service connection for a psychiatric disorder In June 2020, the Veteran submitted a private psychiatric evaluation by Michael L. Cesta, M.D., F.A.C.P. Dr. Cesta concluded that the Veteran’s in-service symptoms of headaches, dizziness, and motion sickness, along with the Veteran’s behavioral problems were “a complex set of symptoms” that were indicative of a psychiatric disorder. These in-service symptoms are documented in the Veteran’s service treatment records, as well as the Veteran being disciplined in service, and this establishes the in-service event, injury, or disease in service that entitles the Veteran to a VA examination and medical opinion for the claim for service connection for a psychiatric disorder, to include PTSD and MDD. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by a psychiatrist to determine the likely etiology of a psychiatric disorder. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The Veteran should be given the Minnesota Multiphasic Personality Inventory (MMPI) test. Any other psychological testing deemed warranted by the examiner should also be conducted. The examiner should be provided a copy of the below-described facts to assist the examiner with providing an opinion. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty from December 1979 to April 1981. • The Veteran contends that he developed a psychiatric disorder during his period of service, which was manifested by behavior he exhibited during service and various physical symptoms documented in the service treatment records. • In March 1980, the Veteran was disciplined for use of a controlled substance and engaging in a fistfight with another member of the military. See VBMS entry with document type “Military Personnel Records,” receipt date 6/25/2020, at page 1. • During June 1980, the Veteran was seen on several occasions with complaints of headaches. The examiner documented that the Veteran admitted to being seasick. The Veteran reported there was not much pain now, and he had not taken medication for the last day and a half. The Veteran described the previous symptoms as temporal, throbbing pain. The examiner noted that the Veteran was not in acute distress and entered an assessment of questionable tension headaches with none at present. The Veteran was subsequently diagnosed with early otitis media. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at pages 36 & 39. • In June 1980, following the above treatment, he was referred for evaluation for the continuous headaches and upset stomach. The referring examiner noted there was a thought that the Veteran’s complaints were psychophysiological in nature and that a complaint of dizziness led to bilateral otitis but today was found to have hypotension with blood pressure being 72/50 sitting and 90/60 lying. His skin was described as cool and clammy. The examiner noted that the Veteran had been experiencing headaches since reporting onboard to the present ship. The examiner documented that the Veteran reported the headaches as involving bifrontal throbbing with no visual disturbance or associated dizziness and no vomiting. Following an examination, the examiner diagnosed vascular headaches. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 40. • In June 1980, the Veteran was disciplined for being absent from duty. See VBMS entry with document type “Military Personnel Records,” receipt date 06/25/2020, at page 2. • In September 1980, the Veteran was still complaining of headaches with left ear pain. The Veteran described having vertigo for the past year, which he could not control. He reported he had lost his balance and fell. The examiner documented that the Veteran’s tympanic membranes were intact with no fluid noted. The examiner noted the Veteran was a possible candidate for a neurological workup. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 36. • In November 1980, the Veteran was counseled regarding his deficiencies in military behavior and advised that any further misconduct of a discreditable nature with either the civilian or military authorities may be grounds for administrative separation processing for a discharge under other than honorable conditions. See VBMS entry with document type “Military Personnel Records,” receipt date 06/25/2020, at page 3. • In January 1981, the Veteran was referred for evaluation of vertigo and headaches, which he reported occurred only when he was at sea. The examiner requested that the Veteran be evaluated for pathology. The otolaryngologist wrote that the Veteran had no history of motion sickness prior to enlistment and no experience on boats or ships. The examiner added that since arriving on the ship in June 1980, the Veteran had been seasick on every cruise and unable to work while at sea. The Veteran denied any other related symptomatology. The examiner’s impression was chronic motion sickness that had been unresponsive to medication and recommended an administrative separation. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 30. • In February 1981, the Veteran was charged with being absent from appointed place of duty. See VBMS entry with document type “Military Personnel Records,” receipt date 06/25/2020, at page 4. • A February 18, 1981 treatment record shows the Veteran reported to sick bay with chronic headaches problems. The examiner wrote acetylsalicylic acid (ASA) and Tylenol were ineffective and recommended the Veteran try Fiorinal “since this episode may[]be due to pending administrative discharge.” See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 27. • On February 19, 1981, the Veteran was seen at the optometry clinic with complaints of vertigo and headaches, which was documented to be “mostly when [at] sea.” See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 23. • The Veteran was seen separately on February 19, 1981 by the same examiner who saw him on February 18. The examiner wrote, “This has been a long-term problem as noted before.” The examiner wrote that ASA, Tylenol, and Fiorinal had limited effect. The examiner noted the Veteran had been recommended to see neurology. This examiner wanted the Veteran to be seen by a medical officer today for evaluation for another medication, other than those previously given. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 28. • A March 1981 Report of Medical Examination performed at separation shows that the Veteran was found to have a clinically normal psychiatric evaluation at separation. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 19 (item 42). • In the corresponding March 1981 Report of Medical History, the Veteran denied a history of frequent trouble sleeping; depression or excessive worry; or nervous trouble of any sort. He reported a positive history of frequent or severe headache; dizziness or fainting spells; and car, train, sea or air sickness. See VBMS entry with document type “STR - Medical,” receipt date 05/15/2012, at page 21. • The Veteran’s DD Form 214 shows that he was discharged due “Medical condition, not a disability, interfering with performance of duty.” See VBMS entry with document type “DD 214 Certified Original – Certificate of Release or Discharge from Active Duty,” receipt date 04/05/2012. • The earliest post-service treatment records are from April 1991. A VA treatment record at that time shows the Veteran reported having terrible headaches for the past one to two months. He also reported having sharp pain in his left hip for three weeks. He was diagnosed with tension headaches and muscular strain of the left buttock. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 09/20/2012, with #1 in the subject field, at page 12. • In November 1994, the Veteran sought help for a drug addiction. He reported using cocaine, cannabinoids, and alcohol. He did not want to be tested at that time and reported his wife was also doing drugs. The assessment was polydrug abuse. See VBMS entry with document type “Medical Treatment Record – Government Facility,” receipt date 09/20/2012, with #1 in the subject field, at page 7. • In September 1995, the Veteran was hospitalized for multiple medical complaints. He reported losing weight for the past year, which had been slow and progressive, and developing tremors in his hands approximately three months ago. He reported he lost 25 pounds in the last two months and complained of worsening of symptoms and feeling anxious. He was subsequently diagnosed with Graves’ Disease See VBMS entry with document type “Medical Treatment Record – Government Facility,” receipt date 09/20/2012, with #2 in the subject field, at pages 1, 6, 14-15. • A January 1997 private treatment record from Family Health Center shows that the Veteran was seeking treatment at this facility for the first time with complaints of blurred vision, dizziness, headaches, and cramps. When completing a Past History and Systems Review, he was provided a list of medical symptoms and asked if he was having any of these problems or had recently had these problems and to place a check mark and write when and for how long. Included in this list was “Depression.” The Veteran checked various symptoms, such as headaches, chest pain, blurred vision and dizziness. The Veteran reported his medical history of hypothyroidism but refused to have his blood drawn at that time. The examiner diagnosed hyperthyroidism and cardiac dysrhythmia. See VBMS entry with document type “Medical Treatment Record – Government Facility,” receipt date 09/20/2012, with #1 in the subject field, at pages 47 & 49. • In September 1997, the Veteran was seen at the Family Health Center for follow up from a head injury he sustained in March 1997. The examiner noted that the Veteran was willing to have blood work performed at that time. The examiner noted there was a large goiter in the neck region. Within in the assessment, the examiner diagnosed hyperthyroidism, goiter, and “Severe anxiety.” See VBMS entry with document type “Medical Treatment Record – Government Facility,” receipt date 09/20/2012, with #1 in the subject field, at page 44. • In October 2000, the Veteran went back to VA after not having been treated there since 1995. The Veteran requested to be seen for a thyroid problem because of tremulousness and frontal headache. He reported prior therapy with Inderal and propylthiouracil (PTU) for hyperthyroidism followed by radioactive iodine (RAI) uptake. The examiner noted there was no treatment for the past eight months and tremulousness began again the week prior with headache in the last week. The assessment was history of hyperthyroidism with prominent goiter. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at page 255. • A November 2000 VA treatment record documents that the examiner noted that the Veteran had been diagnosed with Graves’ Disease approximately five years ago within VA’s system and had been seen the prior month with visual complaints, headaches, tremulousness, and anxiety. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at page 245. • A December 2000 VA preventative health management note shows that the Veteran denied feeling down, depressed, or hopeless in the past month. Additionally, he denied having been bothered by little interest or pleasure in doing things in the past month. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 239-240. • A January 14, 2004 VA treatment record shows that the Veteran reported dizziness and shortness of breath four days prior and had been seen in the emergency room the day before and was found to be bradycardiac. He stated he worked as a custodian and groundskeeper for the school system and worked with paints and thinners. He reported feeling shortness of breath and lightheaded, but denied dizziness. He reported increased tiredness and generalized fatigue. The examiner noted that the shortness of breath was slow in onset with no association with exertion. The Veteran reported he had been having feelings of anxiety, particularly in public lately, which was associated with SOB. The VA intern noted that it was possible the Veteran was not hypothyroid secondary to overtreatment. In entering an assessment of bradycardia, the VA intern wrote that the Veteran’s history was most consistent with panic disorder versus generalized anxiety. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 216-218. • A January 15, 2004 VA treatment record shows that a VA endocrine fellow found that Veteran’s symptoms were not consistent with hypothyroidism, as he denied weight gain, poor appetite, hair loss, slow mentation, fatigue, and constipation, and wrote that the Veteran reported problems with anxiety on occasion. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at page 207. • An April 2011 VA treatment record shows that the Veteran complained of episodes of dizziness when standing up or turning his head to one side, which dizziness would last several seconds to a minute, which had started two weeks ago. The VA nurse noted that the Veteran had not been there since 2004. In a separate April 2011 entry, the Veteran reported he had not had any medical care for seven or more years. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at page 198. • A June 2011 VA treatment record shows that a Military Sexual Trauma (MST) screen noted that the Veteran reported experiencing MST in the past. A depression screen, PHQ-9, performed at that time showed moderate depression. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 183-185. • The June 2011 positive MST screen may have been an error, as the Veteran has not reported an MST in written submissions or at the November 2017 hearing. Additionally, in July 2011 and August 2012, the Veteran denied an MST occurring in service. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 62 (August 2012) & 177 (July 2011). • In a July 2011 VA treatment record, the Veteran reported having depressive symptoms on and off for the last four years. He noted his physical conditions, neck issues, and thyroid issues kept him at home. His energy was described as low with sleep being disturbed by dreams about being shot in the head. He reported that he had been around people fighting with guns all his life. He stated that when he was young, his parents had a gun fight with the neighbors, and he had been threatened by friends and acquaintances with guns many times while he was growing up. The Veteran also reported that he had been stoned once during his childhood, and his younger brother stabbed him with a knife once. He reported that since then, whenever he was around knives, he was scared that he might hurt himself or others with it. However, he also reported that his childhood was “ok.” He reported staying with his grandmother a lot, taking summer vacations, being in the boy scouts, and playing ball, which he pointed out were normal parts of his childhood. He reported that while working for the school district, his boss took a picture of him using the bathroom and distributed it. The Veteran stated he filed a complaint, and his boss was dismissed. He reported thinking about this incident “quite often.” The Veteran said that he fired missiles in the Indian Ocean and that it was loud, but they were never fired upon. He also said that he got into it with a couple of shipmates, and they threatened his life in the military. The Veteran reported his stressors also included limitations due to his physical symptoms. He also stated he had chronic paranoia that people might hurt him, which he felt was related to his past traumatic events. The VA psychiatrist diagnosed major depressive disorder (MDD), PTSD, obsessive compulsive disorder (OCD), rule out mood and anxiety disorder secondary to general medical condition (thyroid), history of alcohol abuse in remission, cannabis abuse, and nicotine dependence. In diagnosing PTSD, the VA psychiatrist specifically noted that was “primarily secondary to trauma in civilian life.” See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 176-180. • In a May 2012 statement in support of claim for service connection for PTSD, the Veteran described being on the port side of a bridge, when the ship began a missile shoot, which was his first. He wrote no one had prepared him for the noise and the burn off smell. He described being able to taste the vapors. He wrote that afterwards, any loud sound scared him and he felt like someone had gun to his head. See VBMS entry with document type, “VA 21-0781, Statement in Support of Claim for PTSD,” receipt date 05/01/2012. • The Veteran next sought mental health treatment from VA in August 2012. He saw the same VA psychiatrist he saw in July 2011. His main complaint at that time was not being able to focus, disturbed sleep, and a lot of dreams. He reiterated his obsessive, intrusive thoughts when he is around knives. He denied suicidal ideation and homicidal ideation towards anyone in particular. The Veteran stated there had been no change in these thoughts recently. The examiner wrote that the Veteran’s stressors included limitations due to physical symptoms. The Veteran also reported he was let go from a job he had for seven years due to his physical condition and missing too many work days. The VA psychiatrist entered the same diagnoses as those in July 2011: MDD, PTSD, OCD, rule out mood and anxiety disorder secondary to general medical condition (thyroid), history of alcohol abuse in remission, cannabis abuse, and nicotine dependence. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 60-67. • The Veteran was seen later in August 2012 by the same VA psychiatrist. He reported he was stressed out due to financial problems but that his mood had been “pretty good.” He denied changes in his random thoughts about knives and reported he continued to have intrusive thoughts when he was around knives, but denied any intent or plan. He stated he could not identify triggers for these thoughts, whether it was from all the concussions he had playing football or the violence he was exposed to in childhood. He described these thoughts coming in anytime and not feeling angry/emotional at the time. He also stated these thoughts were not associated with any specific stressful incidents, such as arguments with wife. The VA psychiatrist entered the same Axis I diagnoses entered previously. See VBMS entry with document type “CAPRI,” receipt date 06/05/2013, at pages 51-53. • A July 2013 VA treatment record shows that the Veteran’s PTSD and depression screens were negative. See VBMS entry with document type “Medical Treatment Record – Government Facility,” receipt date 06/29/2020, at pages 451-452. • In a January 2015 submission, the Veteran stated that a missile launch destroyed a plane-like drone, and he did not know if they were under attack. See VBMS entry with document type “VA 9 Appeal to Board of Appeals,” receipt date 01/29/2015. • At the November 2017 Board hearing, the Veteran testified that during his first missile shoot aboard the USS Gridley, he was standing watch outside of the bridge alone. He said he did not know what was happening and a missile went off. He said that it was the loudest thing he had ever witnessed, and he could taste the poison. The Veteran testified that after it happened, he felt like someone had a gun to his head all the time and it is hard for him to sleep because it is reoccurring. See VBMS entry with document type “Hearing Transcript,” receipt date 11/14/2017, at page 4. • In June 2020, the Veteran submitted a private psychiatric evaluation by Michael L. Cesta, M.D., F.A.C.P. Dr. Cesta wrote that during his interview with the Veteran, the Veteran reported that he struggled from the beginning of his service with persistent headaches, dizziness, vertigo, and motion sickness. The Veteran also reported that he struggled with a military lifestyle, describing that he felt a complete change in his core structure while in the Navy, having become medically ill without an understanding of “what was wrong.” Dr. Cesta concluded that the Veteran had intermittent depressive episodes beginning during his period of active duty, which recurred consistently since his discharge from service. Dr. Cesta found the Veteran’s diagnosis was Major Depressive Disorder, severe, with mood-congruent psychotic features, with anxious distress. He explained the Veteran had developed a complex set of symptoms, including dizziness, headache, and vertigo, which were “completely undefined without a definitive diagnosis despite treatment.” He also found the Veteran had an onset of significant behavioral disturbance, causing a deterioration in his capacity to function and leading to an administrative discharge from the Navy. Dr. Cesta wrote that the Veteran returned home from service a “completely changed individual.” Dr. Cesta concluded the sudden onset of behavioral disturbances, such as the Veteran experienced, were suggestive of the presence of mental illness. Dr. Cesta added that if the Veteran had seen a psychiatrist trained in the modern era, it would have been evident that the Veteran had the onset of mental illness while in service. See VBMS entry with document type “Medical Treatment Record – Non-Government Facility,” receipt date 06/25/2020, at pages 2-15. • Dr. Cesta included two pages of references used in making and supporting his medical opinion. See VBMS entry with document type “Medical Treatment Record – Non-Government Facility,” receipt date 06/25/2020, at pages 16-17. • The examiner’s review of the record is NOT restricted to the evidence listed below. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: (a.) What psychiatric disorder(s) does the Veteran have? (b.) The examiner is asked to state for each psychiatric diagnosis, whether it is at least as likely as not (a 50 percent degree of probability or higher) that the psychiatric disorder had its onset during service from December 1979 to April 1981 or is otherwise related to service. The examiner is asked to provide the facts and medical principles that support the opinion. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to the question. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.