Citation Nr: 21028258 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-49 947A DATE: May 10, 2021 ORDER Service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety, and posttraumatic stress disorder (PTSD), is denied. The appeal as to the issue of service connection for diabetes mellitus is dismissed. REMANDED The issue of service connection for primary lateral sclerosis (PLS) is remanded. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, to include depressive disorder, anxiety, and PTSD, did not have its onset during service and is not otherwise related to service. 2. In the February 2021 hearing before the Board, the Veteran requested that his appeal as to the issue of service connection for diabetes mellitus be withdrawn. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety, and PTSD, have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5017; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 4.125. 2. The criteria for withdrawal of the appeal as to the issue of service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1971 to August 1974. These matters come before the Board of Veterans' Appeals (Board) from a January 2015 rating decision. The Veteran testified before the Board at a hearing in February 2021. A transcript of the hearing has been associated with the claims file. Further, the Board notes that during the February 2021 hearing before the Board, the Veteran withdrew his claim for service connection for diabetes mellitus. A Veteran may withdraw his appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 19.55. When a Veteran does so, the withdrawal effectively creates a situation in which an allegation of error, fact, or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55. In view of the Veteran's expressed desire, the Board concludes that his intent was to withdraw the appeal for service connection for diabetes mellitus, and further action with regard to this issue is not appropriate. The Board no longer has jurisdiction over this issue and, as such, must dismiss the appeal as to the issue of service connection for diabetes mellitus. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) 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, 1166-67 (Fed. Cir. 2004). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). PTSD In order to establish service connection for PTSD, the evidence of record must include (1) a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Lay testimony may be sufficient to corroborate an in-service stressor if the stressor is related to fear of hostile military or terrorist activity. Id. Acquired Psychiatric Disorder The Board acknowledges that the Veteran is claiming service connection for PTSD. During the course of this appeal, his psychiatric symptoms have also been characterized as depressive disorder and chronic anxiety. A service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder; rather, VA should consider the claim as one for any psychiatric disabilities that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has recharacterized the Veteran's claim as service connection for any acquired psychiatric disorder. The Board has reviewed the evidence of record and finds that service connection is not warranted for the Veteran's acquired psychiatric disorder, to include depressive disorder, anxiety, and PTSD. The Veteran contends that his acquired psychiatric disorder, to include depressive disorder, anxiety, and PTSD, was incurred in or caused by service. During the February 2021 hearing before the Board, the Veteran stated that he received psychiatric treatment during service, received some private psychiatric treatment following separation from service, and currently receives VA psychiatric treatment. The Veteran asserts that his current psychiatric symptoms, including depression, flashbacks, and nightmares, are due to mortar attacks witnessed during service in the Republic of Vietnam. During the hearing, the Veteran's daughter also described an emotional flashback following an earthquake, which caused the Veteran to believe a bombing had occurred. Further, the Veteran asserts that his VA psychiatrist remarked that his psychiatric symptoms are caused by service. Next, the Veteran's service treatment records (STRs) exhibit evidence of psychiatric symptoms and treatment. During his February 1971 pre-induction examination and June 1971 enlistment examination there are no indications of psychiatric symptoms; however, the June 1974 STRs indicate a diagnosis of situational anxiety and reactive depression with habitual excessive drinking. The STRs indicate that the Veteran had a positive response to therapy. During the July 1974 separation examination, the examiner determined that the Veteran had no overt psychiatric disorder and documented prior situational depression with no complications and no sequelae. Additionally, at the time of separation the Veteran's July and August 1974 service department records indicate that he was not suffering from any conditions that would warrant a medical separation from service by reason of physical or psychiatric disability; however, he was recommended for discharge based on character, behavior, and attitude toward duties. In September 2006, over 32 years after discharge from service, the first evidence of psychiatric symptoms is noted in the Veteran's VA treatment records. The Board finds that the significant lapse in time between the Veteran's separation from service and evidence of post-service medical treatment weighs against the Veteran's claim of entitlement to service connection. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Regarding the Veteran's VA treatment records, the records indicate treatment for psychiatric symptoms starting in 2006. Specifically, in September 2006 VA treatment records, he was first noted to have possible depression and irritability, for which medication was prescribed. In June 2008 VA treatment records, he was noted to have increased depression. In August 2011 VA treatment records, his psychiatric symptoms were noted to include chronic depression and chronic anxiety. In various VA treatment records, including June 2010 and November 2014, he was noted to have a depression screening score of zero. In November 2016 VA treatment records, he was noted to have some PTSD symptoms including very rare flashbacks, an easy startle response, and hypervigilance; however, the records specifically indicate that his symptoms did not warrant a PTSD diagnosis. In February 2019, he was noted to have a diagnosis of depression according to the DSM 5 and was noted to be in a period of bereavement. The Veteran reported that he did not really have symptoms of depression but rather frustration due to his physical limitations associated with PLS. Further, he reported grief due to the death of his wife and occasional intrusive thoughts related to service in the Republic of Vietnam. The Board finds that the Veteran's VA treatment records demonstrate that he suffers from psychiatric related symptoms, including depression, anxiety, and some symptoms of PTSD; however, his physicians do not provide an opinion stating that any diagnosed ¬¬¬¬¬acquired psychiatric disorder was incurred in or caused by service or that it is related to psychiatric symptoms experienced during service. Rather, the VA treatment records demonstrate that he rarely experiences psychiatric symptoms that are related to service, such as intrusive thoughts, and that his psychiatric symptoms are primarily due to physical limitations related PLS and due to bereavement. Therefore, the Board finds that the VA treatment records do not have significant probative value as this evidence does not demonstrate a nexus relationship between any diagnosed acquired psychiatric disorder and service, and it does not demonstrate continuity of symptoms based on the clinical evidence. Lastly, in February 2019, the Veteran underwent an in-person VA examination with claims file review regarding his claim of service connection for an acquired psychiatric disorder. The Veteran reported that he does not notice his problems with anger or depression but that others notice these problems, including family members. He reported that he occasionally has a bad dream about service, approximately every three months. Regarding his psychiatric symptoms, he stated he keeps it all on the back burner. The examiner noted that the Veteran had prior psychiatric diagnoses related to his PLS; however, the examiner determined that the Veteran does not have a present psychiatric diagnosis in accordance with the DSM. The examiner remarked that the Veteran does not endorse symptoms that would indicate a diagnosis for depression, anxiety, or PTSD, that he may have had more acute problems in the past, and that he may be minimizing current problems; however, overall there is no current suggestion of a psychiatric diagnosis. The examiner remarked that the Veteran received psychiatric treatment during service with good results and that upon separation he was noted to have a history of situational depression. Finally, the examiner determined that based on the lack of a current psychiatric diagnosis, it is less likely than not that the Veteran's claimed disability was incurred in or caused by service. The Board finds the conclusions of the February 2019 VA examiner to be of highly probative value. First, the examiner determined that although the Veteran had prior psychiatric diagnoses related to his PLS, he does not have a current diagnosis of a psychiatric disability. Second, the examiner specifically considered the psychiatric symptoms noted in the Veteran's STRs and VA treatment records including, depression, anxiety, and PTSD, but determined that the Veteran's current reported symptoms do not conform to a diagnosis in accordance with the DSM. The Board notes that service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as the conclusions of the February 2019 VA examination demonstrate that the Veteran does not have a current diagnosis of a psychiatric disability, the evidence does not support a finding of service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety, and PTSD, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND PLS The Board finds that further development is necessary regarding the Veteran's claim of service connection for PLS. The Veteran asserts that his PLS was incurred in or caused by service. During the February 2021 hearing before the Board, the Veteran stated that he served in the Republic of Vietnam and asserted that his PLS is caused by herbicide agent exposure. The Board finds that the Veteran's service department records support his assertion that he served in the Republic of Vietnam, and therefore in-service exposure to herbicide agents is conceded. Further, during the hearing before the Board, the Veteran asserted that his PLS is a form of amyotrophic lateral sclerosis (ALS), a disability for which presumptive service connection may be granted at any time following separation from service under 38 C.F.R. § 3.318. The Veteran stated that he had previously submitted medical literature supporting his assertion that PLS is a form of ALS. The Board has reviewed the evidence of record and finds that some of the medical literature indicates that PLS may be form of ALS. Thus, as the evidence indicates that PLS may be a form of ALS, a disability for which presumptive service connection may be warranted, the Board finds that the low threshold for obtaining a VA examination has been met in this case. A remand is therefore necessary at this time. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his PLS. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Is PLS a separate and distinct disease from ALS? The examiner should consider the submitted medical literature indicating that PLS may be a form of ALS. b. If the examiner finds that PLS is a separate and distinct disease from ALS, is it at least as likely as not (50 percent or greater probability) that the Veteran's PLS had its onset during service or is otherwise related to service, including conceded herbicide agent during service in the Republic of Vietnam? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.