Citation Nr: 21030215 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-48 440 DATE: May 18, 2021 ORDER Entitlement to service connection for a skin disability is dismissed. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection, to include on a secondary basis, for hypertension is remanded. FINDINGS OF FACT 1. In April 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeal (Board) received written notification from the Veteran, through his attorney, that a withdrawal of his appeal for entitlement to service connection for a skin disability was requested. 2. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disability, to include PTSD, is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran or his authorized representative have been met as to the Veteran's claim for entitlement to service connection for a skin disability. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to August 1971. This case comes before the Board on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied service connection for hypertension and an acquired psychiatric disability, to include PTSD. The Veteran appealed the Board's decision denying service connection for heart disease to the United States Court of Appeals for Veterans Claims (Court), which, in March 2020, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's May 2019 decision and remanded the matter to the Board consistent with the terms of the joint motion. 1. Entitlement to service connection for a skin disability An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran, through his attorney, has withdrawn this appeal for service connection for a skin disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for a skin disability and it is dismissed. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD The Veteran contends that he has PTSD related to his service in Vietnam. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a psychiatric disability. A September 2011 private treatment record noted that the Veteran was concerned that he may be depressed and that the Veteran reported a lot of stress in his life due to his son's marijuana addiction. The Veteran reported that he was not motivated to do anything, felt down all the time, was easily angered, felt irritable, worried a lot, and had worsening sleep. His mood was depressed. A December 2011 private treatment record notes that the Veteran was prescribed an anti-depressant which appeared to be helping and that his depression was well controlled. An October 2012 private treatment record noted that the Veteran was depressed for about a year, but that daily medication made him feel much better. A January 2014 private treatment record noted that the Veteran had depression but was doing well. The Veteran reported that he felt more anxious when he attempted to cut back his medication. The private physician noted that lifelong medication was recommended for the Veteran's recurrent depression episodes. The Veteran was afforded a VA examination in May 2014. The VA examiner noted that the Veteran's claims file and VA treatment records were reviewed. The May 2014 VA examiner noted that upon evaluation the Veteran did not have any diagnosis that conformed to the DSM-5 criteria. The examiner noted that the Veteran drank alcohol daily until 2007 and was later prescribed anti-depressants. In regard to psychiatric symptoms, the Veteran stated that he had monthly dreams of being redrafted. In regard to the criterion for a diagnosis of PTSD under the DSM-5, the VA examiner noted that the Veteran met criterion A; however, the VA examiner did not provide responses for criterion B through H nor did the VA examiner list any of the Veteran's psychiatric symptoms. In June 2014, the Veteran submitted buddy statements from M.B and J.K who both explained that the Veteran was different and had problems after returning from service in Vietnam. A July 2014 VA treatment record notes that the Veteran had anxiety and depression and had a positive depression screen. The record notes that the Veteran reported that he was unable to manage his feelings about the Vietnam war and that he did not want to be affected by it but wonder if he had PTSD. The Veteran stated that he was a company clerk and mail clerk during service but that he also performed guard duty. He said that his base often experienced mortar attacks. The record further noted that the Veteran had been prescribed anti-depressants for the past 5 to 6 years. The Veteran reported symptoms including anhedonia, avoidance of doing things, occasional disturbing memories of Vietnam and minimal intrusive signs and symptoms. The Veteran used alcohol to cope with his symptoms but reported that his symptoms worsened since he quit drinking in 2007. Another July 2014 VA treatment record notes that a diagnostic impression indicated that the Veteran had depression, PTSD, and alcohol dependence in sustained remission. The record further details that the Veteran had significant depression and some sub-clinical symptoms of PTSD. The Veteran reported that he was just starting to consider how his war experience was relevant to his life and had avoided talking or thinking about it. An August 2014 VA treatment record notes that the Veteran had been unable to manage his feelings about the war and that he acknowledged how scared he was in Vietnam during mortar and sapper attacks. A PTSD screen was positive. An April 2016 VA treatment record notes that the Veteran had a history of depression but that a depression screening was negative. The Veteran reported he sometimes felt low but denied insomnia or suicidal ideation. The Veteran reported that he would talk to his Veteran's Service Organization about his feelings. A May 2017 VA treatment record noted that the Veteran had a history of depression but that a depression screening was negative and the Veteran's depression was in remission. A July 2018 VA treatment record again noted that the Veteran had depression but that his depression had worsened since retiring from his job. A depression screening was positive and a provision diagnosis of unspecified depressive disorder was noted. The Veteran's symptoms included poor sleep, anhedonia, low/sad mood, low energy, negative self-evaluation, some irritability, disturbing memories of combat and mortar/rocket attacks, recurring dreams of needing to go back to Vietnam for combat, feeling distant or cut off from others, some hypervigilance, helplessness, hopelessness, and some feelings of guilt. In October 2020, the Veteran's wife submitted a statement in which she explained that the Veteran did not like fireworks, was very anti-social, didn't leave the house unless needed, and drank too much. The Veteran's brother also submitted a statement in support of the Veteran's claim in October 2020. The Veteran's brother explained that the Veteran was awarded the Bronze Star for his service in Vietnam but that his family only learned of that through their local paper and that the Veteran never told them of his Bronze Star or spoke about his service in Vietnam. He also explained that the Veteran was overprotective of him when he returned from service. The Veteran's brother further noted that the Veteran drank too much and attempted several stints of sobriety post-service. He explained that the Veteran's war experiences affected his capacity to interact socially, that the Veteran isolated at home, and that the Veteran relied on alcohol to cope with memories of the war. The Veteran underwent a two-hour private examination for his acquired psychiatric disability in April 2021. The private examiner determined that the trauma witnessed by the Veteran in Vietnam led to his development of trauma-based symptomatology consistent with a diagnosis of PTSD. The private examiner also diagnosed the Veteran with alcohol use disorder secondary to his PTSD. The private examiner noted that the Veteran's primary psychiatric disability was PTSD due to his active duty service in Vietnam. The private examiner acknowledged that the Veteran had been previously diagnosed with chronic depression rather than PTSD and explained that the diagnosis was likely impacted by the Veteran's depressive symptomatology overshadowing his trauma-based symptomatology. The private examiner determined that the Veteran actually met the full diagnostic criteria for PTSD as established by the DSM-V and that no separate diagnosis for depressive disorder was necessary because the Veteran's PTSD diagnosis encompassed his depressive symptomatology. The Veteran's symptoms included depression, anxiety, altered thought processing, social isolation, a great sense of despair, persistent memories of Vietnam, neurovegetative symptoms, nightmares, constant intrusive memories he cannot dismiss, progressive reclusiveness, passive suicidal ideation and alcohol use. The private examiner noted several stressors described by the Veteran including mortar and sapper attacks on the base at which he was stationed in Vietnam. The private examiner discussed criterion A through H of the DSM-5 and explained that the Veteran met all of the criterion for full-diagnostic PTSD. Lastly, the private examiner stated that "[t]he May 2014 VA examiner's conclusion that the Veteran had no psychiatric illness is clearly contradicted by an in-depth review of the medical record and a thorough interview with the Veteran." Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304 (f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154 (b); see also 38 C.F.R. § 3.304 (f)(1). In addition, with respect to the evidentiary standard for establishing the required in-service stressor, if a claimed stressor is related to a 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3). The Board finds that the service connection for an acquired psychiatric disability, to include PTSD, is warranted. The Board notes that PTSD, depression and anxiety disorder are all evaluated under the exact same rating criteria (See 38 C.F.R. § 4.130, Diagnostic Code) and therefore the specific psychiatric disability diagnosed (ie. depression or PTSD) would not impact the compensation awarded. Private treatment records and VA treatment records indicate that the Veteran had depression with symptoms that waxed and waned with periods of remission. VA treatment records also indicate that the Veteran reported symptomatology resembling PTSD. See July 2014 and August 2014 VA treatment records and April 2021 private examiner's report. Notably, the Court previously found the May 2014 VA examination report to be inadequate because the VA examiner did not provide responses for criterion B through H under the DSM-5 and did not list the Veteran's psychiatric symptomatology. On the other hand, the Veteran has submitted an April 2021 private examiner's report. The private examiner interviewed the Veteran for two hours, reviewed the Veteran's claims file, noted the Veteran's symptomatology, and provided detailed responses noting that the Veteran met criterion A through H for a diagnosis of PTSD under the DSM-5. The Board affords great probative weight to the April 2021 private examiner's report and finds that a diagnosis of PTSD has been established. Next, the Board finds that the Veteran has provided sufficient lay evidence in support of the claimed in-service stressors. The April 2021 private examiner determined that the Veteran's reported in-service stressors, including mortar and sapper attacks, were adequate to support a diagnosis of PTSD and that the Veteran's symptoms were related to the in-service stressors. The Veteran served in Vietnam for more than a year and the Board finds that the claimed stressors were consistent with the places, types, and circumstances of the Veteran's service. Accordingly, the Board finds that the Veteran has presented credible lay evidence supporting evidence that the claimed in-service stressors occurred. Lastly, the April 2021 private examiner's report found in favor of a nexus between the Veteran's PTSD and his in-service stressors. Since the May 2014 VA examination has been found to be inadequate by the Court, the April 2021 private examiner's report is the only adequate nexus opinion of record and the most probative evidence on point. Therefore, the Board finds that the April 2021 private examiner's report has established a nexus between the Veteran's PTSD and his claimed in-service stressors. Accordingly, entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. REASONS FOR REMAND 1. Entitlement to service connection, to include on a secondary basis, for hypertension is remanded. The Board acknowledges that an April 2021 private examination report provided a positive etiology opinion in favor of service connection for the Veteran's hypertension. The private examiner determined that the Veteran had PTSD since separation from service and that the Veteran's PTSD caused his hypertension. The private examiner further attributed the Veteran's hypertension to his exposure to Agent Orange while serving in Vietnam. However, November 2018 and January 2019 VA treatment records indicate that the Veteran has essential hypertension. The April 2021 private examination report does not indicate that the private examiner considered the Veteran's diagnosis of "essential" hypertension. Moreover, the Board notes that the record indicates that the Veteran was diagnosed with hypertension in approximately 2003 but was not formally diagnosed with an acquired psychiatric disability until approximately September 2011. See September 2011 private treatment record. Lastly, no secondary aggravation opinion has been obtained to determine whether the Veteran's service-connected acquired psychiatric disability aggravates his hypertension. Accordingly, the Board finds that the record is unclear regarding the type of hypertension diagnosed and whether the Veteran's acquired psychiatric disability, which was diagnosed after his hypertension, is secondary to or aggravated by his service-connected acquired psychiatric disability. Therefore, the Board finds that remand for another VA examination is necessary to determine the etiology of the Veteran's hypertension. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran's hypertension. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: a) Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension is causally or etiologically related to his military service or was it manifest within a year thereof? The VA examiner should consider the April 2021 private examiner's report, and the medical literature cited therein. The VA examiner must specifically address the Veteran's contention that exposure to Agent Orange in Vietnam caused his hypertension. b) Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension is caused or aggravated (any incremental increase in the hypertension beyond its normal progression) by his service-connected acquired psychiatric disability, or any other service-connected disability? If it is determined that the Veteran's hypertension is aggravated by a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The VA examiner must indicate that the type of hypertension diagnosed. The VA examiner should also consider the findings contained in the April 2021 private examiner's report. 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED