Citation Nr: 1410192 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-07 672 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a higher initial evaluation for gastritis with helicobacter pylori ulcer, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for anxiety disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active military duty from May 1971 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In July 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO in Nashville. A transcript of that proceeding is associated with the Veteran's claims file. The Board notes that entitlement to service connection for posttraumatic stress disorder (PTSD) was denied by an October 2010 rating decision. In response, the Veteran filed a March 2011 Notice of Disagreement. A Statement of the Case with regards to PTSD was issued in May 2011. To date, the Veteran has not submitted anything that can be construed as an appeal of that issue. Thus, the Board lacks jurisdiction over the issue of entitlement to service connection for PTSD. (The issue of entitlement to an increased evaluation for anxiety disorder is addressed in the remand that follows the decision below.) FINDING OF FACT At his July 2012 hearing, the Veteran withdrew his appeal of entitlement to a higher initial rating for gastritis with helicobacter pylori ulcer. CONCLUSION OF LAW The criteria for withdrawal of appeal of the issue of entitlement to a higher initial rating for gastritis with helicobacter pylori ulcer 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 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 A Substantive Appeal may be withdrawn during the course of a Board hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2013). At his July 2012 hearing before the undersigned, the Veteran withdrew from appeal the issue of entitlement to a higher initial rating for gastritis with helicobacter pylori ulcer. Transcript at page 2. Hence, there remain no allegations of errors of law or fact for appellate consideration with regards to this issue. Accordingly, the Board does not have jurisdiction to review this issue on appeal, and it is dismissed. ORDER The appeal of the claim for a higher initial rating for gastritis with helicobacter pylori ulcer is dismissed. REMAND At his July 2012 hearing before the undersigned, the Veteran testified that the symptoms that he experiences as the result of his anxiety disorder have worsened since his VA examination in September 2010. Transcript at page 2. For example, the Veteran reports now having panic attacks about two times per week. Transcript at page 4. (At his September 2010 VA examination, no panic attacks were reported.) Given the evidence of worsening symptoms, the Board finds that a remand is necessary in order to obtain a VA examination to assess the current severity of the Veteran's anxiety disorder, not otherwise specified. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should obtain the Veteran's most recent VA treatment records relative to anxiety disorder, that are not already associated with the claims file. Once obtained, these records should be associated with the file. 2. Thereafter, make arrangements for the Veteran to be afforded a VA psychiatric examination to determine the current extent of his service-connected anxiety disorder, not otherwise specified. The claims file, including a copy of this remand, must be made available to the examiner for review. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's service-connected anxiety disorder. The examiner should also assign a Global Assessment of Functioning (GAF) score and provide an explanation of the assigned score. Also, the examiner should specifically opine on the impact of the Veteran's anxiety disorder on his social and industrial activities. In offering these opinions, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's lay statements. A rationale for all opinions expressed must be provided. 3. The AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is completed in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should re-adjudicate the Veteran's claim for a higher rating on the basis of all evidence of record and all applicable laws and regulations. If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case. Thereafter, the Veteran should be given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs