Citation Nr: 18143117 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-05 714 DATE: October 18, 2018 ORDER A claim for nonservice-connected pension benefits is dismissed. REMANDED 1. Service connection for irritable bowel syndrome (IBS) is remanded. 2. Service connection for posttraumatic stress disorder (PTSD) is remanded. 3. Service connection for major depressive disorder with anxiety and mood swings is remanded. 4. A claim for a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT At the May 2018 hearing, prior to promulgation of a decision in the matters, the Veteran indicated that he wished to withdraw his claim for nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for withdrawal of an appeal are met as to the claim seeking nonservice-connected pension; the Board has no further jurisdiction in this 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 Veteran honorably served on active duty from July 1990 to July 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the undersigned at a travel Board hearing in May 2018. A transcript of the hearing is of record. Withdrawal of the Claim for Nonservice-Connected Pension Benefits The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. Id. In the present case, the Veteran perfected an appeal as to the issue of entitlement to nonservice-connected pension benefits. See February 2015 Veteran’s Appeal to the Board (VA Form 9). During the May 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the claim for nonservice-connected pension benefits. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. See May 2018 Hearing Transcript at 2. The Veteran’s full understanding of the consequences are shown based on the discussion of the reason why he was withdrawing the appeal and because both he and his representative participated in a meaningful manner at the hearing and were fully aware of their actions at the time. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board finds that there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board has no further jurisdiction to review the appeal with respect to the issue of entitlement to nonservice-connected pension benefits and the appeal must be dismissed. REASONS FOR REMAND 1. Service connection for irritable bowel syndrome (IBS) is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because there is no evidence of a diagnosis of IBS made in accordance with established medical principles. See 38 C.F.R. § 3.317(a)(2)(i)(B)(3), Note; see also May 2013 VA Examination by D.K., P.A. In this case, the Veteran has testified that he now has a diagnosis of IBS. See May 2018 Hearing Transcript. Therefore, remand is required to obtain this evidence. There are also issues with the adequacy of examination itself because there was no indication that the Veteran was afforded all necessary tests to rule out a diagnosis (as in the case of an undiagnosed illness) or provide him with the tests required to diagnose him with a functional gastrointestinal disorder, such as IBS (as in the case of a medically unexplained chronic multisymptom illness or “MUCMI”), in accordance with established medical principles. See 38 C.F.R. § 3.317. VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Service connection for posttraumatic stress disorder (PTSD) is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the relevant VA examination appears to be based on inaccurate factual premises. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Primarily, the examiner opined that the Veteran does not meet the criteria for PTSD because he was not exposed to a qualifying traumatic event, reasoning, in pertinent part, that training for scud missiles with biological or chemical warfare agents could cause anxiety, but is not considered a traumatic event. See May 2013 VA Examination by B.B., Staff Psychologist. However, at the hearing, the Veteran testified that You could look up above our ship and see the scud missiles flying over, literally. There were several where it was one right after the other. If that wasn’t scary enough knowing that these scud missiles could have contained the biochemical warfare that we all feared at that time. We actually donned on our protective gear like gas masks, etcetera and we had syringes that contained medicine that would counteract those gases. We had them at the ready. See May 2018 Hearing Transcript. The Veteran’s testimony indicates that he experienced the training event as more than a routine experience.   3. Service connection for major depressive disorder with anxiety and mood swings is remanded. The Board finds that further development of the record is necessary to meet VA’s duty to assist the Veteran in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the claim at this time because the record does not include an opinion as to the cause of the Veteran’s major depressive disorder with anxiety. In this case, the Veteran was afforded an examination for PTSD, but was ultimately diagnosed with major depressive disorder and anxiety. See May 2013 VA Examination by B.B., Staff Psychologist. However, the examiner did not provide an opinion regarding whether these acquired psychological conditions were incurred in or caused by the Veteran’s active naval service. VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 4. The claim for TDIU is remanded. The matter of TDIU is inextricably intertwined with the Veteran’s other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2014 to the present. 2. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s gastrointestinal disorder or symptoms. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s gastrointestinal disorders by diagnosis(es), if possible. (b.) If not possible, please identify the gastrointestinal signs and symptoms that are perceptible to an examining physician and/or other non-medical indicators that are capable of independent verification, but that cannot be attributed to a known clinical diagnosis. (c.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current gastrointestinal condition(s) was incurred in or is a result of active naval service?* *An answer to this question is not required if the Veteran is diagnosed with a functional gastrointestinal disorder (including, but not limited to irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional abdominal pain syndrome, and functional dysphagia) OR if by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis (with signs and symptoms that are perceptible to an examining physician and/or other non-medical indicators that are capable of independent verification). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. 3. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s mental health condition(s), including Veteran’s claimed PTSD and diagnosed major depressive disorder and anxiety. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran’s mental health condition(s) by diagnosis(es). (b.) For EACH of the diagnosed mental health conditions(s), is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current mental health condition(s) was incurred in naval service, to include as a result of observing scud missiles flying above his ship, assisting in the retrieval of the remains of a pilot that crashed on the shore, or issues with his master chief? The examiner is advised that, BY LAW, the particular facts and circumstances of the Veteran’s case (i.e., his particular medical condition and circumstances) must be addressed. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel