Citation Nr: 1614097 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 12-18 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for drug and alcohol abuse as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 30 percent for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1966 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February 2009 and August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection for PTSD, rated 30 percent from February 2008, and which denied service connection for drug and alcohol abuse claimed as secondary to the service-connected PTSD, respectively. The Veteran subsequently relocated, and the Albuquerque, New Mexico RO currently has jurisdiction of the claims. In February 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. (The Board notes that in Rating Decision Codesheets, the RO has erroneously mislabeled the service-connected PTSD as including drug and alcohol abuse.) The issue seeking a rating in excess of 30 percent for PTSD is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDING OF FACT Prior to the promulgation of a decision in the matter, during a Board hearing in February 2016, the Veteran expressed his intent to withdraw his appeal seeking service connection for drug and alcohol abuse as secondary to service-connected PTSD; there is no question of fact or law remaining before the Board in this matter. CONCLUSION OF LAW Regarding the claim of service connection for drug and alcohol abuse as secondary to service-connected PTSD, the criteria for withdrawal of an appeal by the Veteran are met; the Board has no further jurisdiction in this matter. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In light of the Veteran's expression of intent to withdraw his appeal in the matter of service connection for drug and alcohol abuse, discussion of the impact of the VCAA is not necessary. Service Connection for Drug and Alcohol Abuse The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. Withdrawal may be made by the appellant or by his authorized representative, and appeal withdrawals must be in writing or on the record at a hearing. 38 C.F.R. § 20.204. At the hearing before the undersigned in February 2016 the Veteran's representative expressed, on his behalf, the intent to withdraw his appeal seeking service connection for drug and alcohol abuse as secondary to service-connected PTSD. Hence, there is no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed. ORDER The appeal seeking service connection for drug and alcohol abuse as secondary to service connected PTSD, is dismissed. REMAND Regarding the claim for a rating in excess of 30 percent for PTSD, it appears that the Veteran's disability has worsened since his most recent psychiatric examination in June 2012. He testified regarding the severity of his current symptoms, describing how his temper has worsened with age and he experienced panic attacks two or three times a week. He also related that despite having a license to carry a gun, he did not carry one for the reason that he had anger management problems. The undersigned noted that as the last examination appeared to show mild symptom manifestations for a disability which now may be worse, and that the Veteran continued to fill prescription medication for his disability, a new VA examination to assess the current severity of the PTSD is necessary. 38 C.F.R. § 3.159(c)(4)(i). Prior to the examination, all treatment records from the Santa Fe VA outpatient clinic, where the Veteran (as he indicated at the hearing) received treatment for various disabilities and obtained refills for psychiatric medication from a primary care physician, must be obtained for the record. Additionally, a review of the record found that a private psychotherapist, Lon Rankin, verified in a June 2012 statement that he had treated the Veteran for PTSD and related symptoms from January 2010 to July 2011. Records of such treatment are pertinent evidence in the matter at hand, are not associated with the record, and must be sought. Accordingly, the case is REMANDED for the following: 1. The AOJ should obtain all records of treatment the Veteran has received at the Santa Fe VA outpatient clinic (to specifically include any records showing prescriptions for psychiatric medication by his primary care provider). The AOJ should also secure all records of treatment the Veteran received from Lon Rankin of Hillas and Rankin psychotherapy, LLC, during the period of January 2010 through July 2011. He must assist in the matter by providing the necessary medical releases for VA to obtain the private records. 2. The AOJ should then arrange for the Veteran to be examined by a psychiatrist or psychologist to determine the current severity of his service-connected PTSD. The Veteran's record must be reviewed by the examiner. The examiner should provide accurate and fully descriptive assessments of all psychiatric symptoms, and should comment upon the frequency or severity of the Veteran's PTSD symptoms, and their impact on his functioning. A complete rationale must be provided for all opinions. 3. The AOJ should then review the record and readjudicate the claim seeking a rating in excess of 30 percent for PTSD. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs