Citation Nr: 1801019 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-15 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for a traumatic brain injury (TBI). 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for a neck disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran had active duty training in the Army National Guard from September 1983 to December 1983, and served on active duty in the Army National Guard from May 2003 to May 2004. He was awarded the Global War on Terrorism Service Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in March 2017. A transcript of that proceeding has been associated with the claims file. Based on the statements of the Veteran and his representative, as well as the medical evidence of record, and in light of the holding in Clemons v. Shinseki, the Veteran's claim for service connection for PTSD has been recharacterized as noted above. 23 Vet. App. 1 (2009) (holding that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The issue of entitlement to service connection for Grave's disease has been raised by the record in a November 2011 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 issues of entitlement to service connection for an acquired psychiatric disorder, TBI, a back disability, and a neck disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT During the March 2017 hearing, prior to the promulgation of a decision on the appeal, the Veteran and his representative indicated that the Veteran requested to terminate the appeal of his claim for service connection for asthma. CONCLUSION OF LAW The criteria for withdrawal of the claim for service connection for asthma by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS 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. § 7105 (2012). 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 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. During the March 2017 hearing, the Veteran withdrew the claim for service connection for asthma. See March 2017 Hearing Transcript, pg. 2. There remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review this claim; it is dismissed. ORDER The withdrawn claim for service connection for asthma is dismissed. REMAND The Veteran seeks service connection for an acquired psychiatric disorder, TBI, a neck disability, and a back disability. Preliminarily, there are outstanding records. In April 2015 the Veteran submitted an excerpt of an April 2015 VA medical record, and a form indicating he had received care at VA facilities in Oregon and California from 2011 through 2015. The most recent VA medical records in the claims file were received in April 2013, and also appear to be excerpts submitted by the Veteran. Moreover, the Veteran reported receiving chiropractic care after service; however these records do not appear to have been obtained. See Hearing Transcript, pp. 20-21. Further, VA medical records contained in the Veteran's Social Security Administration (SSA) disability records note that the Veteran reported receiving physical therapy. It is unclear whether the Veteran's chiropractic treatment and physical therapy were through VA or a private provider. On remand, all outstanding VA medical records should be associated with the claims file, and reasonable efforts should be made to obtain any relevant private treatment records. The Veteran testified that during his period of service from 2003 to 2004 he was involved in a vehicle accident during which he sustained a TBI. See Hearing Transcript, pp. 6-7, 18-21. The Veteran indicated that the motor pool would have a logbook documenting the reported incident. Id. at 21-22. Records from the Veteran's unit or the motor pool have not been obtained. Moreover, the Veteran presented additional testimony regarding his reported in-service stressor events. Id. at 10-12. On remand, the AOJ should attempt to obtain the Veteran's complete personnel records and any unit records from his period of service from May 2003 to May 2004, including any records from the motor pool at Tooele Army Depot. The AOJ should also, to the extent feasible, attempt to corroborate the reported stressors given the addition of new evidence since January 2010, the date of the Joint Services Records Research Center memorandum. The Veteran's assistance should be requested if additional information is necessary. The Veteran has not been afforded VA examinations for his claimed disabilities. The record indicates the Veteran has been diagnosed with depressive disorder, mood disorder, and alcohol abuse, and contains conflicting information regarding whether the Veteran satisfies the criteria for a diagnosis of PTSD. See September 2009 Psychological Evaluation contained in SSA records and the October 2010 Shasta Community Health Center record. The Veteran's service treatment records contain no mention of psychiatric symptoms or complaints, but the Veteran has reported that he experienced several stressor events during service. Given that the Board is remanding the claims file to obtain personnel and other relevant records regarding the Veteran's reported in-service accident and to verify his reported stressors, a VA examination is warranted. The record also indicates the Veteran has diagnoses of cognitive deficits, cervicocranial syndrome, neck sprain / strain, lumbosacral sprain / strain, thoracic sprain / strain, and lumbar plexus disorder. See July 2012 VA medical record and June 2009 record from Dr. J. R. The Veteran's service treatment records are silent regarding head, neck, or back injuries; though the Board is remanding the claims file to obtain personnel and other relevant records that may corroborate the Veteran's reported in-service accident. Based on these facts and the potential addition of relevant records on remand, VA examinations are warranted. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disabilities. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claims, including any records from chiropractors and physical therapists. 3. Obtain the relevant unit records from appropriate source to corroborate the Veteran's in-service accident and reported stressors. See July 2009 VA Form 21-0781 and accompanying statements, and March 2017 Hearing Transcript, pp. 7, 10-12. Also obtain any outstanding service personnel records. Thereafter, determine whether the Veteran's stressors can be sufficiently corroborated or verified based on the Veteran's previously submitted stressor statements, his March 2017 testimony, and any additional evidence obtained on remand. If any additional information from the Veteran is necessary his assistance should be sought. All information obtained by the AOJ in furtherance of this attempt must be associated with the claims file. If the AOJ is unable to corroborate these stressors, a negative finding to such effect must be associated with the claims file. 4. Thereafter, afford the Veteran an appropriate VA examination to determine the etiology of any acquired psychiatric disorder. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was performed. Based on clinical evaluation of the Veteran and review of the claims file, the examiner is asked to provide responses to the following: a. For PTSD, if diagnosed, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD was causally related to any corroborated stressor during his military service. The examiner should reconcile his or her diagnosis with the September 2009 Psychological Evaluation contained in SSA records and the October 2010 Shasta Community Health Center record. b. For any diagnosed disorders other than PTSD, whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder had its onset during active service or is related to any in-service injury, event, or disease. The examiner must include a thorough rationale for any conclusions reached. The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 5. Next, schedule the Veteran for a VA TBI examination. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for a review in connection with the examination. Any indicated studies or diagnostic tests should be performed. The examiner is requested to review the claims file and offer an opinion as the following questions: a. Whether the Veteran has a current diagnosis of TBI or residuals thereof caused by service, to include his reported Humvee accident in 2003. b. Whether the Veteran's currently reported symptoms are at least as likely as not (a probability of 50 percent or higher) manifestations of an in-service TBI. The examiner's attention is directed to the Veteran's service treatment records and to the July 2012 VA medical record noting that it was difficult to differentiate whether the Veteran's reported cognitive deficits were due to TBI, PTSD / depression, or alcohol use. The examiner must include a discussion of the underlying reasons for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Next, schedule the Veteran for a VA examination to determine the nature and relationship to service of any diagnosed back and neck disabilities. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. Based on the review of the Veteran's claims file and examination of the Veteran, the examiner is asked to opine on the following: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed back disability is caused by or related to service. b. Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed neck disability is caused by or related to service. The examiner must include a discussion of the underlying reasons for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. Review the examination reports for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 8. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs