Citation Nr: 1601979 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 09-43 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board has recharacterized the Veteran's psychiatric claim to encompass all psychiatric disorders shown in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for a psychiatric disability is addressed in the REMAND that follows the ORDER section of the decision below. FINDING OF FACT Prior to the promulgation of a decision in this appeal, the Veteran informed VA in September 2015 correspondence that he desired to withdraw the appeal for entitlement to service connection for a back disability. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for a back disability have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015). 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In September 2015, the Veteran submitted correspondence expressing his desire that the claim for service connection for a back disorder be removed from the present appeal because the disorder was not incurred during service. Thus, the Veteran has requested to withdraw the appeal for service connection for a back disorder. Consequently, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for that benefit and the appeal with respect to that benefit must be dismissed. ORDER The appeal for entitlement to service connection for a back disability is dismissed. REMAND As for the remaining claim on appeal, the Veteran claims that his current psychiatric disability is due to service. He claims that he was harassed and screamed at during service because he was unable to comprehend or perform commands quickly due to preexisting learning impairments. The Veteran asserts that because of this, he felt depressed and had suicidal thoughts while on active duty. He contends that he went to his sergeant during service and requested help for his symptoms, but that he was instead disciplined and received an Article 15. The Veteran claims to have experienced additional problems during service, including problems with discrimination by a sergeant and being disciplined after almost killing a sergeant with a gun. The Veteran has also stated, as reflected in his VA treatment records, that he has experienced symptoms, such as feelings of depression and hopelessness, all of his life. In a December 2008 formal finding, the RO determined that the Veteran's service treatment records are unavailable. Thus, it is unclear whether the Veteran had a preexisting psychiatric disorder noted at the time of his entrance into service, and if so, whether the disorder underwent a permanent increase in severity while he was on active duty. The available service records also do not show whether the Veteran experienced any psychiatric symptoms during service. However, the record does include an April 1974 Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) reflecting that the Veteran was disciplined for wrongfully appropriating ammunition. Review of any additional records related to this in-service incident or any other disciplinary actions during service may prove useful to the Board in adjudicating the claim. As the Veteran's complete service personnel records have not been obtained, and are pertinent to the claim, a remand is warranted so that the originating agency can secure this evidence or determine that the records are unavailable. Moreover, a remanded is also needed in order to afford the Veteran a VA examination to determine the nature, onset, and etiology of all psychiatric disorders present during the period of the claim. See 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates a claimed disability may be associated military service for the purposes of a VA examination). Finally, while on remand, the originating agency must attempt to obtain all pertinent VA treatment records and private medical records identified by the Veteran, to include all records from his private psychiatrist, Dr. G. G., and his complete records from Hawthorn Medical Associates. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain all available service personnel records for the Veteran. 2. Undertake appropriate development to obtain all pertinent VA and private medical records, to include records from Dr. G. G. and Hawthorn Medical Associates. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. After completion of all records development, arrange for the Veteran to be scheduled for a VA psychiatric examination by psychiatrist or psychologist to determine the nature and etiology of all acquired psychiatric disorders present during the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Based on the results of the examination and the review of the other pertinent evidence of record, the examiner must identify each acquired psychiatric disorder that has been present during the period of the claim. With respect to each identified disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder was present during the Veteran's active service and if so, whether the disorder clearly and unmistakably existed prior to the Veteran's entrance onto active duty. With respect to each psychiatric disorder present during the period of the claim that the examiner believes existed prior to the Veteran's entrance onto active duty, the examiner should state an opinion as to whether the disorder clearly and unmistakably underwent no permanent increase in severity as a result of service. With respect to any psychiatric disorder present during the period of the claim that the examiner believes was not present during service, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. In providing the requested opinions, the examiner must discuss the Veteran's lay statements regarding the onset and progression of his psychiatric symptomatology. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 4. Undertake any additional development deemed necessary. 5. Then, readjudicate the claim for service connection for a psychiatric disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs