Citation Nr: 1325975
Decision Date: 08/02/13	Archive Date: 09/24/13

DOCKET NO.  12-33 498	^   )        DATE	 AUG 02 2013

On appeal from the Department of Veterans Affairs Regional Office in New York, New York

THE ISSUES

1. Entitlement to service connection for a lumbar spine disability.

2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression.

3. Entitlement to service connection for tinnitus.

4. Entitlement to service connection for an ear condition, to include Meniere's disease.

REPRESENTATION

Appellant represented by:   Tonya Scott, Agent

ATTORNEY FOR THE BOARD 

H. Bunker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1969 to October 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for lumbar spine and psychiatric disorders 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.

FINDING OF FACT

In June 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he was withdrawing the issues of entitlement to service connection for tinnitus and an ear disorder.

CONCLUSION OF LAW

The criteria for withdrawal of the issues of entitlement to service connection tor tinnitus and an ear disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). 
Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Board received notice in June 2012 from the Veteran's representative that he was withdrawing his appeal for tinnitus and an ear disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed.

ORDER

The appeal for entitlement to service connection for tinnitus is dismissed.

The appeal for entitlement to service connection for an ear disorder, to include Meniere's disease, is dismissed.

REMAND

The Veteran has submitted names of private treatment providers and/or releases for the RO to obtain outstanding treatment records from private treatment providers. The RO did not obtain records from the following physicians and did not notify the Veteran these records were not associated with the claims file: Dr. Brian Parks, Dr. Malebranche, Dr. Kravitz, Dr. Allan Karl (or Carl), Dr. Richards, Dr. Spuggs, and Atlantic Spine. The RO should provide the Veteran with releases for these physicians and obtain outstanding treatment records.

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The Veteran has been diagnosed with multiple psychiatric disorders including PTSD, depression, and anxiety disorders. The Veteran should be afforded a VA examination to determine if a psychiatric condition is related to service.

Accordingly, the case is REMANDED for the following 
action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)

1.	Ask the Veteran to identify all records of VA and non- VA health care providers who have treated him for his claimed disabilities.

a) After obtaining any appropriate authorizations for release of medical information, to include Dr. Brian Parks, Dr. Malebranche, Dr. Kravitz, Dr. Allan Karl (or Carl), Dr. Richards, Dr. Spuggs, and Atlantic Spine, the RO must seek to obtain any potentially relevant records that have not been previously received from each health care provider the Veteran identifies.

b) The Veteran should be advised that he may obtain these records on his own and submit them to the RO.

c) The RO must associate with the claims file all outstanding medical treatment records from any VA treatment facility.

d) If any records are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

2.	Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder.

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a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination.

b) The examiner(s) must conduct any appropriate interviews and clinical testing.

c) The examiner is asked to identify the psychiatric disabilities the Veteran has, to include PTSD, depression and anxiety disorder, and state whether any diagnosis is related to service. The examiner should review VA treatment records diagnosing the Veteran with PTSD. See e.g., August 2012 VA treatment record.

d) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.

e) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner.

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3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

4. After completing the above, and any other development deemed necessary, the RO should readjudicate the Veteran's claims. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned 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).

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. 2012).

Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals

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