Citation Nr: 21024938 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-38 908 DATE: April 27, 2021 ORDER The appeal pertaining to the issue of entitlement to an initial compensable rating prior to January 4, 2020, and in excess of 20 percent thereafter for right elbow strain with lateral epicondylitis (limited pronation and supination) is dismissed. The appeal pertaining to the issue of entitlement to an initial rating in excess of 10 percent for right elbow strain and lateral epicondylitis (limited flexion) is dismissed. The appeal pertaining to the issue of entitlement to an initial rating in excess of 10 percent prior to January 4, 2020, and in excess of 20 percent thereafter for lumbar strain with disc protrusion at L5-S1 and IVDS is dismissed. Service connection for posttraumatic stress disorder (PTSD) and unspecified anxiety disorder is granted. FINDINGS OF FACT 1. At the March 2021 Board of Veterans’ Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issues of entitlement to an initial compensable rating prior to January 4, 2020, and in excess of 20 percent thereafter for right elbow strain with lateral epicondylitis (limited pronation and supination); entitlement to an initial rating in excess of 10 percent for right elbow strain and lateral epicondylitis (limited flexion); and entitlement to an initial rating in excess of 10 percent prior to January 4, 2020, and in excess of 20 percent thereafter for lumbar strain with disc protrusion at L5-S1 and IVDS. 2. Resolving all doubt in the Veteran’s favor, his current acquired psychiatric disorder, diagnosed as PTSD and unspecified anxiety disorder, is related to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an initial compensable rating prior to January 4, 2020, and in excess of 20 percent thereafter for right elbow strain with lateral epicondylitis (limited pronation and supination). 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an initial rating in excess of 10 percent for right elbow strain and lateral epicondylitis (limited flexion). 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an initial rating in excess of 10 percent prior to January 4, 2020, and in excess of 20 percent thereafter for lumbar strain with disc protrusion at L5-S1 and IVDS. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for service connection for PTSD and unspecified anxiety disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1995 to March 1996, September 2013 to September 2014, and December 2018 to January 2020, with additional service in the Reserve. This matter comes before the Board on appeal from rating decisions issued in November 2015 by a Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence and waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the September 2017 supplemental statement of the case. 38 C.F.R. § 20.1305(c). 1. Entitlement to an initial compensable rating prior to January 4, 2020 and in excess of 20 percent thereafter for right elbow strain with lateral epicondylitis (limited pronation and supination). 2. Entitlement to an initial rating in excess of 10 percent for right elbow strain and lateral epicondylitis (limited flexion). 3. Entitlement to an initial rating in excess of 10 percent prior to January 4, 2020, and in excess of 20 percent thereafter for lumbar strain with disc protrusion at L5-S1 and IVDS. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the March 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issues of entitlement to an initial compensable rating prior to January 4, 2020, and in excess of 20 percent thereafter for right elbow strain with lateral epicondylitis (limited pronation and supination); entitlement to an initial rating in excess of 10 percent for right elbow strain and lateral epicondylitis (limited flexion); and entitlement to an initial rating in excess of 10 percent prior to January 4, 2020, and in excess of 20 percent thereafter for lumbar strain with disc protrusion at L5-S1 and IVDS. In this regard, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Consequently, there remain no allegations of errors of fact or law for appellate consideration with regard to such issues. Accordingly, the Board does not have jurisdiction to review the appeal of the aforementioned issues, and they are dismissed. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 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 may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a claimed stressor is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, as the result of trauma he experienced while deployed on active duty to Southwest Asia. Specifically, he claims that, on his first night in Afghanistan, he and his fellow servicemembers were forced to the bunkers after they were attacked with a rocket-propelled grenade. During such event, he became fearful for his life and the lives of his fellow soldiers. With respect to an in-service event, the AOJ issued a formal finding of a lack of information required to corroborate the Veteran’s stressor and, thus, did not undertake any effort to verify it. Nevertheless, the Board finds the Veteran’s reported stressor is consistent with the places, types, and circumstances of his service and is related to his fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). In particular, the Veteran’s DD-214 confirms that he served in Afghanistan from November 16, 2013, to August 10, 2014, and in Kuwait from February 8, 2019, to November 7, 2019. Based on this evidence, and resolving all doubt in the Veteran’s favor, the Board acknowledges his stressor based on his fear of hostile military or terrorist activity coincident with such service. Furthermore, his service treatment records indicate that he complained of depressive symptoms after his deployments to Southwest Asia as indicated by his post-deployment health assessments and, in January 2019, a diagnosis of PTSD was noted. In April 2015, the Veteran was afforded a VA examination, at which time the examiner found that he did not meet the DSM-5 criteria for a diagnosis of PTSD. However, he noted a diagnosis of other specified trauma and/or stressor related disorder, but did not provide an etiological opinion. The Veteran underwent another VA examination in February 2020, at which time the examiner noted a diagnosis of adjustment disorder with mixed anxiety and depressed mood, but, again, an etiological opinion was not provided. He underwent a third VA examination in October 2020, at which time the examiner diagnosed unspecified anxiety disorder and opined that such disorder was at least as likely as not incurred in or caused by his deployments during service. Additionally, in March 2021, a VA psychiatrist noted that the Veteran was a combat engineer with combat exposure in Afghanistan and was diagnosed with PTSD in December 2015, meeting all the criteria for such diagnosis. Based on the foregoing, the Board resolves all doubt in the Veteran’s favor and finds that his current acquired psychiatric disorder, diagnosed as PTSD and unspecified anxiety disorder, is related to his military service. Consequently, service connection for such disorders is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.