Citation Nr: 1301157 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-31 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for post traumatic stress disorder (PTSD). 5. Entitlement to service connection an acquired psychiatric disorder. 6. Entitlement to service connection for erectile dysfunction, including as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from January 1966 to January 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled to attend a travel board hearing at the RO in September 2011. In correspondence, he and his representative withdrew his request for the hearing. The issues of service connection for an acquired psychiatric disorder and erectile dysfunction 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 September 2011, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran and his representative indicating that he wished to withdraw his appeal seeking service connection for a heart disorder; there are no questions of fact or law remaining before the Board in this matter. 2. In September 2011, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran indicating that he wished to withdraw his appeal seeking service connection for bilateral hearing loss; there are no questions of fact or law remaining before the Board in this matter. 3. In September 2011, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran indicating that he wished to withdraw his appeal seeking service connection for tinnitus; there are no questions of fact or law remaining before the Board in this matter. 4. In September 2011, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran indicating that he wished to withdraw his appeal seeking service connection for PTSD; there are no questions of fact or law remaining before the Board in this matter. CONCLUSION OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran are met; the Board has no further jurisdiction in the matter of service connection for a heart disorder. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. The criteria for withdrawal of a Substantive Appeal by the Veteran are met; the Board has no further jurisdiction in the matter of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 3. The criteria for withdrawal of a Substantive Appeal by the Veteran are met; the Board has no further jurisdiction in the matter of service connection for tinnitus. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 4. The criteria for withdrawal of a Substantive Appeal by the Veteran are met; the Board has no further jurisdiction in the matter of service connection for PTSD. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). As the issues addressed in this decision have been withdrawn, the VCAA does not apply. Withdrawal of Issues on Appeal The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege 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. In correspondence received from the Veteran and his representative in September 2011, it was indicated that the Veteran wished to withdraw his appeals as to service connection for a heart disorder, bilateral hearing loss, tinnitus, and PTSD that were before the Board. Hence, there are no allegations of error of fact or law for appellate consideration on these claims. Accordingly, the Board does not have jurisdiction to consider an appeal in these matters. Under these circumstances, the appeals as to these matters are dismissed. ORDER The appeal seeking service connection for a heart disorder is dismissed. The appeal seeking service connection for bilateral hearing loss is dismissed. The appeal seeking service connection for tinnitus is dismissed. The appeal seeking service connection for PTSD is dismissed. REMAND The remaining issues on appeal relate to service connection for an acquired psychiatric disability and erectile dysfunction. Review of the record shows that the Veteran has been treated for a dysthymic disorder for the past several years and that his service treatment records (STRs) include a reference to checking for a psychiatric evaluation. There is no further explanation given and no further indications that the Veteran had psychiatric treatment during service. The STRs show that on examination for separation from service the Veteran did not give a medical history of psychiatric complaints and psychiatric clinical evaluation was normal. The Board finds that an additional search for STRs is appropriate. In addition, the Veteran's representative has pointed out that VA outpatient treatment records include references to the Veteran giving a history of having been depressed since being drafted into service and in May 2007 a VA physician indicated that the Veteran's psychiatric disability is "more likely related to his service." The Veteran has not been afforded a psychiatric compensation examination. In a veteran's claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when either a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis, or where lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Simply stated, the standards of McLendon are found to be met in this case so that a VA examination should be scheduled. As the Veteran is seeking service connection for erectile dysfunction secondary to the psychiatric disability, this matter must be held in abeyance. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center( NPRC) and request that an additional search be undertaken to insure that all of the Veteran's STRs have been associated with the claims folder. 2. The RO/AMC should arrange for the Veteran to undergo a psychiatric examination to ascertain the current nature and etiology of his psychiatric disorder. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that any acquired psychiatric disorder is related to service. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 3. If, and only if, it is determined by the examiner that it is at least as likely as not that an acquired psychiatric disability is related to service, the Veteran should be afforded a medical examination to ascertain whether it is at least as likely as not (probability 50 percent or more) that any erectile dysfunction is caused by, or aggravated by, the acquired psychiatric disability. 4. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim 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 Supp. 2010). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs