Citation Nr: 1124128 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-40 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased compensable rating for the Veteran's service-connected schistosomiasis. 2. Entitlement to service connection for cataracts. 3. Whether new and material evidence has been received to reopen a claim for service connection for a stomach disorder, to include a peptic ulcer. 4. Entitlement to service connection for a psychiatric disorder, to include depressive neurosis, psychotic level with hysterical features. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1950 to October 1951. Other earlier service is noted in the record but unverified. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the benefits sought on appeal. The Veteran requested a videoconference hearing before the Board. The requested hearing was conducted in February 2011 by the undersigned Veterans Law Judge (VLJ). The Board notes that the psychiatric disorder claim was developed as new and material evidence by the RO. However, the Veteran's psychiatric disorder claim was previously denied on the basis of secondary service connection to a 38 U.S.C.A. § 1151 disability. At his February 2011 Board hearing, the Veteran testified that he was now claiming his psychiatric disorder was directly related to his active military service. Due to this new theory of entitlement to service connection, the Board finds that the Veteran's psychiatric disorder claim is not a new and material evidence claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of: (1) whether new and material evidence has been received to reopen a claim for service connection for a stomach disorder, to include a peptic ulcer, and (2) entitlement to service connection for a psychiatric disorder, to include depressive neurosis, psychotic level with hysterical features, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In February 2011, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal of the claim concerning entitlement to an increased compensable rating for the Veteran's service-connected schistosomiasis. 2. In February 2011, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal of the claim concerning entitlement to service connection for cataracts. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a Substantive Appeal concerning the issue of entitlement to an increased compensable rating for the Veteran's service-connected schistosomiasis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. The criteria for the withdrawal of a Substantive Appeal concerning the issue of entitlement to service connection for cataracts have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. Here, at the Veteran's February 2011 Board hearing and in a February 2011 statement, the Veteran requested that the issues concerning entitlement to an increased compensable rating for the Veteran's service-connected schistosomiasis and entitlement to service connection for cataracts be withdrawn. Therefore, the Veteran has withdrawn the appeal of these issues and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. ORDER The claim concerning entitlement to an increased compensable rating for the Veteran's service-connected schistosomiasis is dismissed. The claim concerning the Veteran's entitlement to service connection for cataracts is dismissed. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the remaining claims can be properly adjudicated. A remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of the claimed disorders on appeal. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the Veteran testified that he had experienced a stomach disorder and a nervous disorder in service. Service treatment records show that he was hospitalized for a time in service and it was reported he had a weight loss during his hospitalization. It was also reported that he had nervous troubles and a conversion reaction was noted. A remand is required in order to afford the Veteran a VA examination to determine the etiology of his stomach disorder and psychiatric disorder. The Veteran has never been afforded a VA medical nexus opinion for these claims. Thus, the Board finds that an examination is needed to determine the whether these disorders are related to the Veteran's active military service. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA spine examination to ascertain the nature and etiology of his claimed stomach disorder, to include a peptic ulcer. Properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at his correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. The examiner must express an opinion as to whether it is "more likely than not" (likelihood greater than 50%), "at least as likely as not" (50%), or "less likely than not" (less than 50% likelihood) that any currently diagnosed stomach disorder, to include a peptic ulcer, had its onset during service or is in any other way causally related to his active service or to any of his service-connected disabilities. A complete rationale should be provided for any opinion or conclusion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 2. Schedule the Veteran for an appropriate VA spine examination to ascertain the nature and etiology of his claimed psychiatric disorder, to include depressive neurosis, psychotic level with hysterical features. Properly notify the Veteran of the examination by sending notice of the details of the examination to the Veteran at his correct address. Send the notice with sufficient time in advance to allow the Veteran to attend the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. The examiner must express an opinion as to whether it is "more likely than not" (likelihood greater than 50%), "at least as likely as not" (50%), or "less likely than not" (less than 50% likelihood) that the Veteran currently has a psychiatric disorder, to include depressive neurosis, psychotic level with hysterical features, that had its onset during service or is in any other way causally related to his active service or to any of his service-connected disabilities. A complete rationale should be provided for any opinion or conclusion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 3. After the above actions have been completed, readjudicate the Veteran's claims for: (1) whether new and material evidence has been received to reopen a claim for service connection for a stomach disorder, to include a peptic ulcer, and (2) entitlement to service connection for a psychiatric disorder, to include depressive neurosis, psychotic level with hysterical features. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case, and afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs