Citation Nr: 1754801 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-05 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 30 percent for adjustment disorder with mixed anxiety and depressed mood. 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 August 1964 to August 1967. This case comes before the Board of Veterans Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for adjustment disorder with mixed anxiety and depressed mood (and not any other psychiatric disorder), rated 30 percent, effective in October 2012. The Veteran appealed for a higher rating and for inclusion of PTSD as a service-connected disability. In September 2016, a videoconference hearing was held before the undersigned; a transcript is associated with the Veteran's claim file. The issue of service connection for a left knee disability was raised by the Veteran in a March 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The matter of the rating for adjustment disorder with mixed anxiety and depressed mood is REMANDED to the AOJ. VA will notify the Veteran if action is required. FINDING OF FACT At a September 2016 Board hearing, prior to the promulgation of a decision in the matter, the Veteran's representative expressed on the record the Veteran's intent to withdraw his appeal seeking service connection for PTSD; consequently, there is no question of fact or law remaining before the Board in this matter. CONCLUSION OF LAW The criteria for withdrawal of an appeal are met with respect to the claim of service connection for PTSD; the Board has no further jurisdiction in the matter. 38 U.S.C. § 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Discussion of the impact of the VCAA is not necessary in light of the Veteran's intent to withdraw his appeal seeking service connection for PTSD. Legal Criteria, Factual Background, and Analysis The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, an appeal must be withdrawn in writing, and may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At a Board hearing in September 2016, the Veteran's representative expressed on the record that it was the Veteran's intent to withdraw his appeal of the claim for service connection for 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 the matter, and the appeal must be dismissed. ORDER The appeal seeking service connection for PTSD is dismissed. REMAND A preliminary review of the record found that the Veteran's service-connected adjustment disorder with mixed anxiety and depressed mood may have worsened since his most recent VA examination. He underwent VA psychiatric examinations in December 2012 and October 2013. Subsequently, he testified at a September 2016 Board hearing that his psychiatric symptoms have become more severe. Specifically, he described increased problems with memory loss and ability to concentrate, which led him to leave his job as a professional chef the previous year, and stated that he has not worked since then. Given the evidence that suggests a material change in the Veteran's condition, and the VA's duty to assist him in obtaining evidence adequate to decide the claim, an additional examination to assess the current severity of the adjustment disorder with mixed anxiety and depressed mood is warranted. 38 C.F.R. § 3.159(c)(4); 3.327 (2017). Notably, during the pendency of the appeal, VA implemented use of the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013), effective August 4, 2014. DSM-5 applies to claims received by VA or pending before the AOJ on or after August 4, 2014, but does not apply to claims that were certified to the Board or were pending before the Board or Court prior to that date. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The instant claim was originally certified to the Board in September 2015, and thus DSM-5 applies. Prior to arranging for an examination, the AOJ should ensure that complete, updated VA treatment records are associated with the claims file. The most recent VA records are dated in November 2013. Moreover, the record contains recent letters dated in October 2016 (returned as undeliverable due to an incorrect address), August 2017, and September 2017 from VA's Vocational Rehabilitation & Employment division, referring to the Veteran's participation in VA's Chapter 31 program and his receipt of an employment adjustment allowance. The AOJ should ensure that the Veteran's vocational rehabilitation file is associated with the claims file, as information therein is relevant to the matter on appeal. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for association with the claims file: (a) updated (from November 2013) VA medical records pertaining to evaluation and treatment of the Veteran's psychiatric disability; and (b) the Veteran's vocational rehabilitation file. 2. Thereafter, the AOJ should arrange for a psychiatric examination of the Veteran to assess the current severity of his service-connected adjustment disorder with mixed anxiety and depressed mood. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. The examiner is asked to consider and apply the criteria of DSM-5, in identifying and describing the nature, frequency, and severity of all current symptoms of the psychiatric disability. The examiner is also asked to describe the impact of the psychiatric symptoms on the Veteran's daily activity and social and occupational functioning. Complete rationale must be provided for all opinions. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim. If the benefit sought is not granted (to the Veteran's satisfaction), 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. §§ 5109B, 7112 (2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs