Citation Nr: 1533752 Decision Date: 08/07/15 Archive Date: 08/20/15 DOCKET NO. 13-21 882A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for prostate cancer residuals. 2. Entitlement to service connection for an acquired psychiatric disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had creditable active service from February 1979 to July 12, 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2010. In May 2015, the appellant appeared at a Board videoconference hearing held before the undersigned. The Veteran had additional service from July 13, 1988, to October 1993, but he received a bad conduct discharge in October 1993. In an administrative decision dated in June 2007, the RO found that the Veteran's service for the period from February 1979 to July 12, 1988, was honorable, but that the service from July 13, 1988, to October 1993 was dishonorable, and, thus, a bar to VA compensation for any disability incurred during that period of service. The Veteran did not appeal the June 2007 notice to him of the decision, or submit relevant evidence within a year; accordingly, the June 2007 administrative decision is final. Although in his notice of disagreement in connection with the current appeal, received in September 2011, the Veteran said that the evidence showed that his honorable evidence extended to September 1990, as indicated in the June 2007 administrative decision, the period of honorable service does not extend up until the date the misconduct began or occurred. Instead, the determination as to the period of honorable service is dependent upon when the Veteran was last eligible for an unconditional discharge before the misconduct began, which was found to be July 12, 1988. The Veteran also stated in September 2011 that he had applied for a discharge upgrade. However, he has not subsequently raised this matter, indicating either he has not received a decision from the service department, or that it was unfavorable to him. Therefore, the Board finds that an application to reopen the administrative decision that found service from July 13, 1988, to October 1993, to be dishonorable, has not been received. However, should the Veteran obtain new and material evidence, such as a favorable decision from the Naval discharge review board, he is free to reopen his claim. The issue(s) of entitlement to a left knee disability, a right hip disability, an acquired psychiatric disability, and a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On May 5, 2015, prior to the promulgation of a decision in the appeal, the Board received testimony from the appellant that a withdrawal of the appeal as to the issue of service connection for prostate cancer residuals is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal of the issue of service connection for prostate cancer residuals by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Concerning the claim for service connection for prostate cancer residuals, 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 2014). 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 (2014). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. An appeal may be withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b)(1). In the present case, the appellant withdrew the appeal as to the issue of service connection for prostate cancer residuals on the record at his May 2015 Travel Board Hearing. There remain no allegations of errors of fact or law for appellate consideration, concerning that issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal as to the issue of entitlement to service connection for prostate cancer residuals is dismissed. (CONTINUED ON NEXT PAGE) REMAND The Veteran claims that he was hospitalized in service due to a mental breakdown which led to an attempted suicide. He states that he was hospitalized in Walter Reed Army Medical Center for treatment. Service treatment records include a history of a hospitalization in November 1986 following an overdose, noted on one occasion to be a suicide attempt. In addition, a notation dated in December 1986 shows that the Veteran had an appointment at 1:30 p.m. on December 18, 1986, at the psychiatry service of the Naval Hospital in Philadelphia. None of these identified psychiatric treatment records are on file, and they must be obtained, if extant. In obtaining these records, the Board observes that although the Veteran identified Walter Reed as the relevant hospital, he was in the Navy, and, therefore, he could have instead been hospitalized in the nearby Bethesda Naval Hospital. In addition, he must be afforded a VA examination to determine whether he has a current psychiatric disorder of service onset. Records from Social Security Administration (SSA) include a private record dated in July 2009, which included a diagnosis of depressive disorder, noted in-service hospitalizations for suicide attempts in 1987, and concluded that he had a "pre-disposition for suicide and depression previously treated in 1987." Although the Veteran has not raised this matter in connection with his appeal, in VA treatment records, dated in March and April 2010, the Veteran reported symptoms of PTSD and said that he had witnessed suicide bombers killing 250 soldiers in Beirut during service, and the assessment was PTSD. Therefore, the Veteran's claim for service connection for an acquired psychiatric disability should be developed to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). With respect to the claim for service connection for a left knee disability, service treatment records show that the Veteran injured his left knee in service, in October 1984, and underwent surgery in a private hospital in Guam to repair the patella tendon of the left knee. A VA examination in June 2010 disclosed no instability or abnormal tendons, bursae, or meniscus. X-rays showed minimal degenerative changes, and the examiner opined that ligament surgery in service would not cause the degenerative joint disease shown on X-rays. However, in reviewing the service treatment records, the Board notes that X-rays in October 1984 showed a superior dislocation of the left patella. X-rays in January 1985 showed demineralization of the bones of the left knee joint, especially the patella, which had developed since the October 1984 X-rays, probably due to disuse. Because the prior examination addressed only the tendon surgery, an additional examination is needed to determine whether the dislocated patella and/or demineralization of the bones may have led to the currently shown degenerative changes. In this regard, the Board must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision. Jones v. Principi, 16 Vet. App. 219, 225 (2002). In addition, the Veteran filed a claim for SSA disability benefits, which was initially denied in December 2009. Medical records relied upon for this decision are on file. However, the Veteran appealed, and was granted SSA disability benefits in a February 2011 administrative decision that referenced medical and vocational evidence, including mental health assessments, dated subsequent to the December 2009 decision. These records should be obtained, as they may be potentially relevant to the claim for service connection for an acquired psychiatric disability, as well as the claim for a TDIU rating. Otherwise, a decision concerning the claim for a TDIU rating and for service connection for a right hip disability must be deferred pending a decision on the other issues, because the outcome of the service connection issues would potentially affect the TDIU claim, and the right hip disability is claimed as secondary to the left knee disability, also on appeal. Accordingly, the case is REMANDED for the following action: 1. Request all records pertaining to a psychiatric hospitalization of the Veteran, likely following an overdose, in or about November 1986, in Walter Reed Army Hospital or the Bethesda Naval Hospital. In this regard, the Veteran served in the Navy, but identified Walter Reed as the pertinent hospital; therefore, if the most likely hospital does not have any such records, the other must be contacted as well, before the search can be considered complete. All attempts to obtain these records must be documented in the claims file. 2. Request records of the Veteran's treatment/evaluation at the Philadelphia Naval Hospital psychiatry service for a scheduled appointment on December 18, 1986, as well as any follow-up treatment records. All attempts to obtain these records must be documented in the claims file. 3. Request that SSA provide all records obtained after the initial December 2009 decision in the Veteran's claim, and which were relied upon in the February 2011 administrative decision. All attempts to obtain these records must be documented in the claims file. 4. Obtain all VA treatment records dated from May 2012 to the present. 5. Provide the Veteran with a PTSD stressor statement form, for him to complete and return, concerning his allegations in VA treatment records dated in March and April 2010, where he reported symptoms of PTSD and said that he had witnessed suicide bombers killing 250 soldiers in Beirut during service. 6. If the Veteran responds with a sufficient stressor statement, take all necessary action to verify the alleged stressor, keeping in mind that only the honorable period of service may be considered. 7. Then, schedule the Veteran for a VA psychiatric examination to determine if he has an acquired psychiatric disability which had its onset during the Veteran's honorable service (from June 1979 to July 12, 1988). The examination must also include whether the Veteran has PTSD due to an in-service stressor; the specific stressor(s) must be identified in the examination report. The complete electronic claims file must be available to the examiner in conjunction with the examination, and a rational for all opinions expressed must be included. 8. Schedule the Veteran for an appropriate VA examination to determine if his current degenerative joint disease of the left knee is related to a knee injury sustained in service in October 1984, and which, according to X-rays, showed a dislocated patella in October 1984, and demineralization of the bones of the knee in January 1985. The complete electronic claims file must be available to the examiner in conjunction with the examination, and a rational for all opinions expressed must be included. 9. After completing the above, and any other indicated development, the Veteran's claims for service connection for an acquired psychiatric disability, a left knee disability, and a right hip disability, and for a TDIU rating should be readjudicated based on the entirety of the evidence. If the decision remains less than a full grant of the benefits sought, the Veteran and his representative should be furnished a supplemental statement of the case, and given an 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 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs