Citation Nr: 1602768 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 11-33 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include a pulmonary embolism. 2. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1971. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Atlanta, Georgia. In October 2015, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. As will be discussed below, the claims file indicates that the Veteran withdrew his claim of entitlement to service connection for a respiratory disorder, to include: pulmonary embolism in November 2014. Thereafter, he did not timely resurrect the claim to vest the Board with jurisdiction over the claim. See 38 C.F.R. § 20.204(c) (2015) (Withdrawal does not preclude filing a new notice of disagreement and, after a statement of the case is issued, a new substantive appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed.) To the extent that the question of entitlement to service connection for a respiratory disorder was discussed at the October 2015 hearing, the Veteran and his representative are advised that he must submit a claim to reopen this issue on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). See also 79 Fed. Reg. 57660 (Sep. 25, 2014) (All claims governed by VA's adjudication regulations must be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.) The issue of entitlement to a disability rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT In correspondence received in November 2014, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to service connection for a pulmonary disorder to include a pulmonary embolism. CONCLUSION OF LAW The criteria for withdrawal of an appeal concerning the claim of entitlement to service connection for a respiratory disorder, to include: pulmonary embolism, have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). In November 2014, the Veteran, through his representative, submitted correspondence stating, "Veteran wished to withdraw his Notice of Disagreement and appeal for service connection for pulmonary embolism." On review, the Veteran has withdrawn the appeal as to entitlement to service connection for pulmonary embolism; and, consequently, there remain no allegations of errors of fact or law for appellate consideration as concerns this issue. Accordingly, the Board does not have jurisdiction to review it and it is dismissed. ORDER The appeal as to the claim of entitlement to service connection for a respiratory disorder, to include a pulmonary embolism is dismissed. REMAND A review of the record indicates that further development is necessary with regard to the Veteran's claim of entitlement to an increased rating of his posttraumatic stress disorder prior to adjudication by the Board. Particularly, the evidence raises questions as to the current severity of this condition. During the Veteran's most recent VA psychiatric examination in November 2014, the Veteran denied suicidal or homicidal ideation, and did not display symptoms of panic attacks, severe memory loss, or obsessional rituals that interfere with daily activities. During the Veteran's Board hearing, however, he reported feeling that his disorder had worsened in severity since then. The appellant further provided testimony regarding his symptoms to include suicidal ideation and obsessional rituals that interfere with his daily activities. A May 2015 psychiatric evaluation completed by K. Rao, M.D., the Veteran's treating psychiatrist, also suggests that the appellant's psychiatric condition has worsened in severity. Dr. Rao's evaluation states that the Veteran's posttraumatic stress disorder causes total occupational and social impairment manifested by symptoms that include the following: near continuous panic or depression that affects the Veteran's ability to function independently, appropriately and effectively; inability to establish and maintain effective relationships; and memory loss for names of close relatives, own occupation, or own name. While this report arguably supports a rating in excess of 50 percent, corresponding treatment records associated with the claims file do not indicate symptoms of that level of severity. Significantly, however, the Veteran's treatment records from Dr. Rao's practice beyond October 2013 have not been associated with the claims file. Further, treatment records from the Veteran's therapist at Atlanta Vet Center have not been associated with the file. The claims file indicates that the Veteran has been receiving individual therapy at the Vet Center on a monthly basis since April 2013. These records should be requested and associated with the claims file prior to adjudication of the Veteran's claim. 38 U.S.C.A § 5103A(c)(3) (West 2014); 38 C.F.R. § 3.159 (2015). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate efforts to obtain updated treatment records from K. Rao, M.D. since October 2013. All attempts to procure such records should be documented in the file. If the AOJ cannot obtain such records, or other private records identified by the Veteran, the AOJ should specifically so state. In addition, the Veteran and his representative should be informed of any such problem. 2. Undertake appropriate efforts to obtain any pertinent outstanding VA treatment records, including any records from the Atlanta Vet Center since April 2013. All attempts to procure such records should be documented in the file. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After a reasonable time has been allowed for receipt of additional records, schedule the Veteran for an examination by a VA psychiatrist, to determine the nature and extent of any disability caused by PTSD. The Veteran is to be notified that it is his responsibility to report for any examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. The claims folder must be made available to the examiner. All necessary tests and studies, to include psychological testing, should be performed in order to assess the symptomatology attributable to PTSD, and to distinguish that pathology from any other psychiatric disorder. The report of the examination should contain a detailed account of all clinical manifestations of PTSD. The examiner must offer an opinion addressing the effect of the Veteran's PTSD on the appellant's employability to include a complete discussion of all functional impairments as they affect social and industrial opportunities. The examination report must include a complete rationale for the opinions and conclusions reached. 4. The RO must ensure that any clinical examinations or reports requested above comply with this remand. If the reports are insufficient, or if a requested action is not taken or is deficient, it should be returned for correction. 5. After taking any further development deemed appropriate, readjudicate the Veteran's claim on appeal. If all benefits sought are not granted, provide the Veteran and his representative a supplemental statement of the case and afford them 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs