Citation Nr: 1332675	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  13-15 616	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to eligibility for nonservice-connected pension.  

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to compensation under 38 U.S.C. § 1151 for splintered/fractured left femur, bladder infection, and injury to the skin.

4.  Entitlement to service connection for depression, as secondary to splintered/fractured left femur, bladder infection, and injury to the skin.

5.  Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to June 1971.

This case is before the Board of Veterans' Appeals (Board) on appeal from March 2012 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

A Board hearing was held before the undersigned at the White River Junction, Vermont, RO in September 2013, and a transcript of the hearing is of record.  At the Board hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration of such evidence.  

The issues of entitlement to service connection for PTSD; entitlement to compensation under 38 U.S.C. § 1151 for splintered/fractured left femur, bladder infection, and injury to skin; entitlement to service connection for depression, as secondary to splintered/fractured left femur, bladder infection, and injury to the skin; and entitlement to TDIU are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action on his part is required.

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


FINDING OF FACT

In September 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal for the claim of eligibility for a nonservice-connected pension.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran as to the claim of eligibility for a nonservice-connected pension have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).


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 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  In the present case, the Veteran indicated in correspondence dated in September 2013 that he wanted to withdraw his appeal for the issue of eligibility for nonservice-connected pension.  Thus, there remains no allegation of errors of fact or law for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review this matter on appeal, and it is dismissed.


ORDER

The Veteran's appeal regarding eligibility for a nonservice-connected pension is dismissed.


REMAND

The Veteran seeks service connection for PTSD; compensation under 38 U.S.C. § 1151 for splintered/fractured left femur, bladder infection, and injury to skin; service connection for depression, as secondary to splintered/fractured left femur, bladder infection, and injury to skin; and entitlement to TDIU.  Before the Board can adjudicate these claims on the merits, additional development is required.

I.  Stressor Verification

The Veteran alleges that he has PTSD due to serving on a "crash crew" while in the Navy.  He states that he witnessed an airplane crash, and pulled a severely injured pilot to safety from the burning fuselage.

In November 2012, the RO submitted a request via the Defense Personnel Records Information Retrieval System (DPRIS) regarding the Veteran's stressor-a crash at Naval Air Station Whiting Field between October 7, 1970 and January 6, 1971, with casualties being wounds or injuries as the result of non-hostile action.  A response was received in December 2012, noting that the command histories for Whiting Field from 1970 and 1971 did not reveal an incident in which an aircraft crashed resulting in casualties.  The response further noted that research was also coordinated with the Bureau of Naval Personnel and the Naval Historical Center (the custodian of U.S. Navy Mishap Investigation Reports at the time of the incident), and both also returned negative responses for October 1970.

The Veteran, however, has alleged that his stressor occurred sometime in October, November, or December of 1970.  See Board Hearing Tr. at 4.  While the command histories for those dates were searched, the coordinated search with the Bureau of Naval Personnel and the Naval Historical Center focused only on potential incidents that occurred in October 1970.  Thus, on remand, the Bureau of Naval Personnel and the Naval Historical Center should also search their records for any aircraft crashes that occurred in November and December 1970.


II.  Missing VA Records

In October 2012, the Veteran's treating physicians at his local VA Medical Center (VAMC) recommended that the Veteran be referred for a consultation with an orthopedic surgeon at the VAMC in Boston, Massachusetts, to determine if there was a problem with his hip implant.  While a January 2013 VA treatment record notes that the orthopedic surgeon "did not feel [that the Veteran's hip] was infected or needed revision," the Boston VAMC records are not in the claims file.  These records are highly relevant to the Veteran's claim and must be obtained.  See 38 C.F.R. § 3.159(c)(2) (2013). 

III.  Intertwined Issues

Because the actions requested on remand could result in compensation under 38 U.S.C. § 1151 for splintered/fractured left femur, bladder infection, and injury to skin, which, in turn, could potentially result in service connection for depression, as secondary to the splintered/fractured left femur, bladder infection, and injury to skin, the Board finds that the claim for service connection for depression is inextricably intertwined with the claim for compensation under 38 U.S.C. § 1151.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have a significant impact on the outcome of the other).  Further, because actions requested on remand could result in a grant of any claim for service connection on appeal, which in turn, could potentially result in entitlement to TDIU, the Board finds that the claim for TDIU is inextricably intertwined with the other claims on appeal.  See id.  Action on the depression and TDIU claims are therefore deferred.

Accordingly, the case is REMANDED for the following actions:

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


1.  Obtain the Veteran's VA records from the orthopedic consultation at the Boston VAMC, dated on or around January 2013.  If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).

2.  Submit a DPRIS request for the Bureau of Naval Personnel, Casualty Assistance Division, and the Naval Historical Center, Aviation History Branch, to search any aircraft crashes, resulting in injuries as a result of non-hostile action, that occurred on Naval Air Station Whiting Field in Milton, Florida, for the period from November 1, 1970 to December 31, 1970.  If a negative response is received, prepare an addendum to the December 6, 2012, memorandum of record regarding the corroboration of the Veteran's claimed stressors.

3.  If and only if the Veteran's stressor is corroborated in Item (2), schedule the Veteran for an examination to determine the nature and etiology of his PTSD.  The claims file, as well as any records contained in Virtual VA, should be made available to and be reviewed by the examiner in conjunction with the examination.

The examiner is asked to provide a current diagnosis, if any, and to address the following question:

Is it at least as likely as not (50 percent probability or greater) that the claimed stressor caused 
PTSD or any other acquired psychiatric disorder?

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered (to include whether the Veteran meets the criteria for a diagnosis of PTSD).  If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

4.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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).

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).



____________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs