Citation Nr: 1334812	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-14 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for depression.

2.  Entitlement to service connection for anxiety with stress.

3.  Entitlement to service connection for a gunshot wound to the left knee.

4.  Entitlement to service connection for bipolar disorder.

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


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Gielow, Counsel


INTRODUCTION

The Veteran served in the Army National Guard from September 1992 to September 1995, which included an active duty for training period from January 1993 to June 1993.  He was honorably discharged from the U.S. Army Reserves in September 2000. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for depression, anxiety with stress, a gunshot wound to the left knee, bipolar disorder, and PTSD.  

The Veteran appeared before the undersigned Acting Veterans Law Judge at a Board hearing held at the RO in March 2011.  A transcript of the hearing has been associated with the record.

The Veteran recently submitted a claim for entitlement to education benefits under the Montgomery G.I. Bill.  See April 2013 statement ("Please reconsider my Montgomery G.I. Bill, which was not used due to my medical status, mentally and physically unstable at that time.").  This issue has been raised but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over the matter, and the issue is hereby referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for a gunshot wound to the left knee, bipolar disorder, and PTSD 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 March 2011, after the appeal was perfected and certified to the Board but prior to the promulgation of a decision on the issues, the Veteran withdrew the claims for entitlement to service connection for depression and anxiety.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issue of entitlement to service connection for depression have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).

2.  The criteria for withdrawal of the issue of entitlement to service connection for anxiety with stress 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 FINDINGS 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.  38 C.F.R. 
§ 20.204.

In the present case, in March 2011, the Veteran submitted a statement in a VA Form 21-4138 stating that he "hereby withdraw[s the] appeal on the issues of service connection for depression and anxiety."  The Veteran has withdrawn this appeal of these issues 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 appellate issues and they are dismissed.


ORDER

Service connection for depression is dismissed.

Service connection for anxiety with stress is dismissed.


REMAND

With regard to the remaining issues of entitlement to service connection for a gunshot wound to the left knee, bipolar disorder, and PTSD, a remand is necessary for additional development.

I.  Service Personnel Records/Drill Pay Records

The Veteran reported that he was shot in the left knee by a gang member while he was in the Army National Guard in July 1993.  He explained that the assault occurred while he was on his way to his cousin's for a barbeque.  He stated that he was assigned to Co. G 149th Aviation at the time of the incident and that, thereafter, his condition was aggravated by drills although he did not receive any military treatment.  See e.g. January 2009, April 2009, and July 2010 statements; Board Hearing Transcript at p. 5, 8, 13.  He also stated he requested and was given a general discharge in 1995 and was placed on the Independent Ready Reserve status until his honorable discharge from the Reserves in September 2000.  Service treatment records have recently been obtained in November 2011, and although a copy of the Veteran's May 1995 National Guard separation form is of record (as is a DD-214 for a period of active duty for training prior to the gunshot wound incident and his Reserve discharge in September 2000), no other service personnel records have been obtained for his time served in the National Guard of Texas from July 1993 through May 1995.  As his personnel records and drill pay records during this period may contain additional information regarding the dates that the Veteran participated in active duty for training (ACTDUTRA) and/or inactive duty for training (INACTDUTRA) following the gunshot wound, a copy of these records should be obtained on remand.

II.  VA Vocational Rehabilitation & Employment Records

The Veteran also testified that he was awarded special status for VA's Vocational Rehabilitation & Employment (VR&E) program due to his claimed disabilities.  Documents, such as medical records generated by VA, are considered to be constructively part of the record before the Board.  Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam).  Accordingly, on remand, a copy of all relevant VR&E records pertaining to his gunshot wound injury, bipolar disorder, and/or PTSD should be obtained.

III.  Recent Social Security Administration Records

Although the RO obtained Social Security Administration (SSA) documents in February 2009, the Veteran was subsequently scheduled for a hearing with SSA regarding his entitlement to benefits in December 2009.  See November 2009 SSA attorney letter on Virtual VA.  Additionally, in March 2011, the Veteran testified that his appeal with SSA is still ongoing, with an upcoming hearing scheduled, and that these records are relevant to his appeal because they "would show the x-rays, also the mental part of it."  See Board Hearing Transcript at p. 16.  Because these records are potentially relevant to the appellate issues, recent SSA records must be obtained on remand.  38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. 
§ 3.159(c)(2) (2013); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits).
   
IV.  Private Treatment Records

After carefully reviewing the file, the Veteran has also identified several private treatment facilities that may have relevant records pertaining to his appeal, including Healing Hands Health Care (see September 2010 statement), Integris/St. Anthony (see VA Form 21-2176 dated February 2009), North Rock (see November 2009 VA Form 21-4142 and March 2011 hearing), Forth Worth MHMR (see January 2007 report of contact and January 2009 statement); Tarrant County Jail (see March 2007 VA Form 21-4142); and Parkland Hospital (see January 2007 report of contact).  Accordingly, on remand, the RO/AMC should ask the Veteran to provide new VA Form 21-4142s (Authorization and Consent to Release Information to the Department of Veterans Affairs), so that VA may make attempts to obtain them on remand.  See 38 C.F.R. § 3.159(c)(1).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain National Guard personnel records and drill pay records from July 1993 through May 1995.

2.  Obtain copies of any relevant VR&E records pertaining to his claimed gunshot wound injury, bipolar disorder, and/or PTSD.

3.  Obtain copies of recent SSA documents, dating from February 2009 through the present.  If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 
38 C.F.R. § 3.159(e).

4.  Ask the Veteran to provide VA Form 21-4142s for any outstanding private treatment records, including from the following:  Healing Hands Health, Integris/St. Anthony, North Rock, Forth Worth MHMR; Tarrant County Jail; and Parkland Hospital.  Following receipt of authorization with sufficient identifying information, obtain these records.  Two attempts should be made to obtain relevant private records, unless a formal finding can be made that a second request for such records would be futile.  If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e).

5.  Thereafter, readjudicate the issues of entitlement to service connection for a gunshot wound to the left knee, bipolar disorder, and PTSD.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate consideration. 

The appellant 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 




(CONTINUED ON THE NEXT PAGE)
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).




______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs