Citation Nr: 21029478 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-33 692 DATE: May 13, 2021 ORDER Entitlement to an increased rating in excess of 60 percent for diabetic nephropathy is dismissed. Entitlement to an increased rating in excess of 10 percent for a hiatal hernia is dismissed. Entitlement to an increased rating in excess of 60 percent for coronary artery disease (CAD) and paroxysmal atrial fibrillation status post myocardial infarction, and percutaneous transluminal coronary angioplasty (PTCA) with pacemaker is dismissed. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II is dismissed. Entitlement to an increased rating in excess of 20 percent for degenerative changes of the thoracic spine is dismissed. Entitlement to an increased rating in excess of 10 percent for status post-operative thyroidectomy is dismissed. Entitlement to an increased compensable rating for left wrist ganglion cyst is dismissed. Entitlement to an increased compensable rating for hemorrhoidectomy and anal fissure is dismissed. Entitlement to an increased compensable rating for Peyronie's disease with erectile dysfunction is dismissed. Entitlement to an increased compensable rating for recurrent prostatitis is dismissed. Entitlement to an increased compensable rating for neck surgical scar is dismissed. Entitlement to service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative, stated that he wished to withdraw his appeal for entitlement to an increased rating in excess of 60 percent for diabetic nephropathy. 2. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative, stated that he wished to withdraw his appeal for entitlement to an increased rating in excess of 10 percent for hiatal hernia. 3. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative, stated that he wished to withdraw his appeal for entitlement to an increased rating in excess of 60 percent for CAD and paroxysmal atrial fibrillation status post myocardial infarction, PTCA with pacemaker. 4. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative, stated that he wished to withdraw his appeal for entitlement to an increased rating in excess of 20 percent for diabetes mellitus type. 5. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative, stated that he wished to withdraw his appeal for entitlement to an increased rating in excess of 20 percent for degenerative changes of the thoracic spine. 6. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative stated that he wished to withdraw his appeal for entitlement to an increased rating in excess of 10 percent for status post-operative thyroidectomy. 7. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative stated that he wished to withdraw his appeal for entitlement to an increased compensable rating for left wrist ganglion cyst. 8. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative stated that he wished to withdraw his appeal for entitlement to an increased compensable rating for hemorrhoidectomy and anal fissure. 9. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative stated that he wished to withdraw his appeal for entitlement to an increased compensable rating for Peyronie's disease with erectile dysfunction. 10. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative stated that he wished to withdraw his appeal for entitlement to an increased compensable rating for recurrent prostatitis. 11. In December 2020 testimony, prior to the promulgation of a Board decision, the Veteran through his representative stated that he wished to withdraw his appeal for entitlement to an increased compensable rating for a neck surgical scar. 12. Resolving reasonable doubt in the Veteran's favor his major depressive disorder is caused by service to include in service stressors. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased rating in excess of 60 percent for diabetic nephropathy. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 2. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased rating in excess of 10 percent for hiatal hernia. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 3. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement an increased rating in excess of 60 percent for CAD and paroxysmal atrial fibrillation status post myocardial infarction, PTCA with pacemaker. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 4. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 5. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased rating in excess of 20 percent for degenerative changes of the thoracic spine. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 6. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased rating in excess of 10 percent for status post-operative thyroidectomy. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 7. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased compensable rating for left wrist ganglion cyst. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 8. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased compensable rating for hemorrhoidectomy and anal fissure. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 9. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased compensable rating for Peyronie's disease with erectile dysfunction. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 10. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased compensable rating for recurrent prostatitis. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 11. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to an increased compensable rating for neck surgical scar. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 12. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1961 to December 1963 and from March 1964 to April 1988 with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from December 2015 and February 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) The Veteran testified before the undersigned Veterans' Law Judge at a December 2019 virtual Board hearing. A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran as a pending Appeals Modernization Act (AMA) appeal that is part of a separate Board decision, in which the Board has granted an earlier effective date for the Veteran's TDIU. 1. Entitlement to an increased rating in excess of 60 percent for diabetic nephropathy is dismissed. 2. Entitlement to an increased rating in excess of 10 percent for a hiatal hernia is dismissed. 3. Entitlement to an increased rating in excess of 60 percent for CAD and paroxysmal atrial fibrillation status post myocardial infarction, PTCA with pacemaker is dismissed. 4. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II is dismissed. 5. Entitlement to an increased rating in excess of 20 percent for degenerative changes of the thoracic spine is dismissed. 6. Entitlement to an increased rating in excess of 10 percent for status post-operative thyroidectomy is dismissed. 7. Entitlement to an increased compensable rating for left wrist ganglion cyst is dismissed. 8. Entitlement to an increased compensable rating for hemorrhoidectomy and anal fissure is dismissed. 9. Entitlement to an increased compensable rating for Peyronie's disease with erectile dysfunction is dismissed. 10. Entitlement to an increased compensable rating for recurrent prostatitis is dismissed. 11. Entitlement to an increased compensable rating for neck surgical scar is dismissed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In December 2020 testimony, on the record at a virtual hearing, the Veteran through his representative, stated he wished to withdrawal all his pending increased rating claims including the increased rating claims for his diabetic nephropathy, hiatal hernia, CAD, diabetes mellitus type II, degenerative changes of the thoracic spine, status post-operative thyroidectomy, left wrist ganglion cyst, hemorrhoidectomy and anal fissure, Peyronie's disease with erectile dysfunction, recurrent prostatitis and neck surgical scar. This testimony on the record at the December 2020 hearing expresses clear intent to withdraw the Veteran's increased rating claims currently on appeal. The Veteran's withdraw of these issues was explicit, unambiguous and done with full understanding of the subsequent consequences. As the Veteran has properly withdrawn the appeals prior to a final Board decision, the Board no longer has appellate jurisdiction and can take no further action on these matters. 38 C.F.R. §§ 20.202, 20.204(b), 20.1100(b). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that service connection is warranted for an acquired psychiatric disorder to include depression, dysthymia and posttraumatic stress disorder (PTSD). The Veteran contends that his current mental health symptomology is related to his service and in-service events in Vietnam. The Veteran contends that his mental health symptomology began in-service and has continued since that time. In December 2020 the Veteran testified that the Veteran's ongoing mental health symptomology including dysthymia and generalized anxiety disorder is related to service including service in the Republic of Vietnam. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Concerning the Veteran's claim for service connection for dysthymia, herein the Board has expanded the issue to include entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and dysthymia, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) noted that the Board should consider alternative current disorders within the scope of the filed claim. Id. In light of Clemons, the issue has previously been framed as entitlement to service connection for an acquired psychiatric disorder, and the Board will consider the entirety of the Veteran's metal health symptomology. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., in accordance with DSM-V) 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). During the course of this appeal, effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran's claim was not pending before the AOJ on August 4, 2014, a diagnosis and analysis of the Veteran's mental health symptomology and PTSD, if applicable, must conform to DSM-V. See 38 C.F.R. § 4.125(a). The file contains VA mental health examinations performed prior to August 2014 when the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders was the medical and regulatory standard and was appropriate for use by the examiners at those times. As there is no information to the contrary, the Board will presume that earlier VA examiners appropriately utilized the diagnostic standard in effect at the time of their examinations. The Veteran has a current diagnosis of major depressive disorder conforming to the DSM-V. The Veteran's service treatment records (STRs) and service personnel records have been associated with the claims file. The Veteran served several tours in the Republic of Vietnam and was awarded the Bronze Star Medal. STRs note a March 1988 report of examination in preparation for retirement noted a normal psychiatric evaluation. On a report of medical history in March 1988 in preparation for retirement the Veteran denied frequent trouble sleeping, depression or excessive worry or nervous trouble of any sort. A VA examination from September 2011 has been associated with the claims file. The Veteran reported ongoing symptoms of depressed mood, sleep difficulty, irritability, exaggerated startle response, nightmares, that he is socially isolated and reduced energy and diminished interest in activities. The Veteran reported that he was hospitalized for suicidal ideation last year. The Veteran reported an in-service stressor in Vietnam seeing his commanding officer shot down in a helicopter and seeing a friend severely wounded. The Veteran reported that he believes his life was threatened and that he could be injured while stationed in Vietnam. A mental status examination noted the Veteran presented with normal orientation, appearance and hygiene with good eye contact. Concentration was impaired with trouble focusing. He reported occasional panic attacks and periods of suspiciousness. He denied hallucinations and/or delusions. Thought process were impaired. Suicidal ideations were noted with no homicidal ideations. The examiner noted a DSM-IV diagnosis of dysthymia disorder and generalized anxiety disorder. The examiner did not find a diagnosis of PTSD, noting the prolonged period following service that the Veteran did not engage in treatment. A January 2021 private opinion has been associated with the claims file. The private psychologist noted an extensive review of the Veteran's claims file, treatment records and clinical interview of the Veteran. The Veteran discussed his service in the Republic of Vietnam. The Veteran reported that after retiring from service he had difficulty adjusting to civilian life. The Veteran reported working as a civilian at the Pentagon until 2003, the Veteran reported that he was working at the Pentagon during September 11, 2001 and was directly impacted by the terrorist attacks, helping several coworkers to safety and being injured. The Veteran reported being treated in-service for anxiety and depression while stationed in Vietnam, where he served several tours. He reported experiencing ongoing symptoms of anxiety and depression through his time in-service. He reported ongoing symptoms of isolating himself, withdrawing, ongoing sleep deprivation, irritability, depressed mood, and nightmares and flashbacks. The Veteran reports that he was hospitalized on two occasions in-service for psychiatric reasons. The Veteran's son reported that post-service the Veteran had difficulty adjusting to civilian life, was highly-structured, rigid and over organized. The private opinion noted post-service the Veteran received private treatment and medication management from VA and private treatment providers. Recently the Veteran was hospitalized in August 2010 for ongoing difficulties with nightmares, flashbacks and suicidal thoughts and longstanding depression. While hospitalized the private opinion noted that the Veteran was diagnosed with major depression, and PTSD. The private opinion noted that the Veteran continues to experience symptoms associated with depressive disorder including flashbacks, depressed mood, anxiety, issues with impulse control, irritability, insomnia, hypervigilance, sleep difficulty, decreased interest in activities and relationships, difficulty concentrating and suicidal ideations. The private opinion noted revie of the Veteran's prior VA examination noting that the Veteran did not meet the criteria for PTSD. However, the private opinion noted that an extensive review of the Veteran's claims file noted that the Veteran was impaired by PTSD symptomology prior to September 2011, and the events of September 2011 worsened his PTSD severely. A mental status examination noted the Veteran was alert and oriented in all three spheres, and was friendly, and struggled with confusion. His speech was clear and linear, but the Veteran is a poor reporter due to his dementia. The Veteran exhibited with an anxious mood. He reports ongoing memories and flashbacks of Vietnam and September 11. The private opinion noted that an accurate psychiatric diagnostic for the Veteran includes PTSD, major depressive disorder and a major neurocognitive disorder of unclear etiology. The Veteran has a lengthy history of PTSD and depression, with treatment in Vietnam and ongoing since. The private opinion noted that the Veteran had trouble establishing and maintaining effective work and social relationships and has extensive difficulty with anxiety, depression and nightmares and had at least moderate levels of impairment in his mood, functioning and ability to adapt to stressors throughout the Veteran's adult life since returning from Vietnam. The private opinion found that the Veteran's depression and PTSD are more likely than not related to his military service and events in-service. VA and private treatment records have been associated with the claims file. Treatment records note ongoing treatment for depression. Private treatment records from inpatient hospitalization in September 2010 noted a diagnosis of major depressive disorder and PTSD. The Veteran reports that in-service he was treated with anti-depressants and that he thought he his symptoms of depression and PTSD would lessen when he returned home. The Veteran reported experiencing ongoing symptoms of difficulty sleeping, irritability, being jumpy and avoiding social situations during service and after his retirement. The Veteran reports ongoing symptoms of depressed mood, anxiety, difficulty sleeping, nightmares and isolating behaviors at times which are related to in-service stressors and events. The Veteran reports that his mental health symptomology began during service and has worsened over time. The Board finds the Veteran's lay statements and associated testimony as to the account of the in-service events is credible. The Veteran is competent to describe his ongoing symptoms since service, and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of the January 2021 private opinion, VA and private treatment records and the Veteran's consistent statements the Board concludes that the evidence is at least in relative equipoise as to whether the Veteran's current major depressive disorder is related to service and in-service events. The Board notes that there is both favorable and unfavorable evidence regarding the Veteran's diagnosis of major depressive disorder but finds the Veteran's reports of his ongoing symptoms and ongoing treatment records are credible. Resolving reasonable doubt in the Veteran's favor the Board finds that service connection is warranted for an acquired psychiatric disorder, to include major depressive disorder which is caused by in-service events. As such the Board finds that service connection for an acquired psychiatric disorder to include major depressive disorder is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.