Citation Nr: 1804458 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-30 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1968 to November 1972. These matters come to the Board of Veterans' Appeals (Board) from rating decisions dated in December 2009 and May 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in May 2016. A transcript of that hearing is of record. Although the Veteran claimed service connection for PTSD, the record shows that he has been diagnosed with depression. Accordingly, the Board has recharacterized the claim to include both disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to a compensable rating for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to the promulgation of a final decision by the Board, the Veteran indicated on the record that he wished to withdraw his claim for entitlement to TDIU. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the claim of entitlement to TDIU have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 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. § 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017).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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At his hearing in May 2016, the Veteran withdrew his appeal as to the issue of entitlement to TDIU. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to that claim. Accordingly, the Board does not have jurisdiction to review the appeal as to this matter and it is dismissed. ORDER The appeal for entitlement to TDIU is dismissed. REMAND The Veteran claims entitlement to service connection for PTSD related to his duties guarding "The Cold Storage Morgue" while serving in the Philippines. His service personnel records document that the Veteran was a security guard in the Philippines, but his duty description indicates that he provided security of goods and secondary law enforcement patrol coverage. In a September 2013 buddy statement, L.M. noted that he served with the Veteran in the Philippines and that the Veteran served as a security guard outside of The Cold Storage Morgue which housed dead bodies. The Veteran also submitted a June 2016 statement from M.P., a VA psychologist, indicating that the Veteran has received mental health treatment periodically since April 2010 for depression symptoms that he related to "sad" things he witnessed while serving in the military. It remains unclear as to whether the Veteran carries an acquired psychiatric disorder (as opposed to symptoms of a depressed mood) due to his active service experiences. In light of the foregoing, the Board finds that a VA examination is necessary to address the nature and etiology of any acquired psychiatric disorders diagnosed during the appeal period. See 38 U.S.C. § 5103A(d)(2) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the Veteran's claim for a compensable initial evaluation for his service-connected hearing loss, he was most recently examined in March 2011. Significantly, the Veteran claims that his hearing has worsened since that examination. See May 2016 Hearing Transcript. He specifically noted being issued hearing aids one year prior to the hearing. Accordingly, the Board finds that a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran's bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Finally, the Veteran reported ongoing treatment for both his psychiatric and hearing loss disabilities during the May 2016 hearing. Accordingly, all outstanding treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all outstanding VA and non-VA treatment records relevant to the issues on appeal. 2. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims file should be available to, and reviewed by, the examiner in conjunction with the examination. The examiner is asked to address the following: a. Identify/diagnose any acquired psychiatric disorder that presently or that has existed during the appeal period (since January 2010). The diagnosis(es) should conform to the DSM-IV and V. If a diagnosis of PTSD is made, the stressor event(s) should be identified. b. For each diagnosed psychiatric disorder, state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such diagnosed psychiatric disorder had its onset in service or is otherwise etiologically related to active service, to include as a result of an incident or stressor during the Veteran's active service. A rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the requested action in directive 1, afford the Veteran a VA audiology examination to determine the current severity of his bilateral hearing loss. The claims file should be available to, and reviewed by, the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The examiner should additionally describe the functional effects caused by the Veteran's bilateral hearing loss. 4. After completing the above actions, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs