Citation Nr: 18148532 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-32 869 DATE: November 7, 2018 ORDER The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood, is remanded. FINDING OF FACT Prior to the promulgation of the Board’s decision on appeal, the Veteran withdrew his appeal as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus. CONCLUSION OF LAW The criteria for the withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1970 to May 1974. The Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge in June 2017. The Board notes that the Veteran originally claimed entitlement to service connection for PTSD and depression as separate claims. However, the Board has recharacterized the issue on appeal in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to an initial rating in excess of 10 percent for tinnitus Generally, the Board’s jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105, 38 C.F.R. § 21.200. 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. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). In the present case, in a February 2017 statement and during the June 2017 Board hearing, the Veteran indicated that he was withdrawing the issue regarding an increased evaluation for tinnitus. Based upon the statement, pre-hearing discussion and the hearing testimony, the Board finds the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the claim listed above. See Acree, 891 F.3d at 1009. Accordingly, there no longer remains any allegation of fact or law for appellate consideration regarding the claim and, consequently, the Board does not have jurisdiction to review the claim. It is, therefore, dismissed. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran underwent VA examinations in connection with his claim for entitlement to service connection for an acquired psychiatric disorder in April 2015 and May 2016. The VA examiners diagnosed adjustment disorder with mixed anxiety and depressed mood and opined that it was not related to the Veteran’s service, rather secondary to the aneurysm the Veteran had in March 2015 as well as financial stressors. The April 2015 VA examiner noted that the Veteran met Criteria A for PTSD but did not meet the criteria for a diagnosis of PTSD. It was also noted that the Veteran has not experienced many PTSD symptoms over the years, but does have nightmares, intrusive thoughts on a monthly basis with distress, but few avoidance and hyperarousal symptoms. While it was opined that the Veteran experiences depressive symptoms due to his adjustment following aneurysm, the examiners determined that the Veteran’s current psychiatric disorder is not related to his stressors in Vietnam. However, the opinions regarding adjustment disorder with mixed anxiety and depression do not provide sufficient rationale for the conclusions reached, and do not properly address the Veteran’s lay contentions of experiencing symptoms since separation from service. Upon review, the Board finds that the opinions of record are insufficient. Accordingly, the Board finds remand is warranted for an addendum opinion regarding the etiology of the Veteran’s adjustment disorder with mixed anxiety and depressed mood The Board also notes that the Veteran submitted more recent private treatment records noting a past history of depression. On remand, the Agency of Original Jurisdiction (AOJ) must clarify whether there are any additional, relevant private medical records that are not yet a part of the Veteran’s claims file, request updated authorization forms as necessary, and obtain all relevant records identified by the Veteran. The matter is REMANDED for the following actions: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the claimed disorders on appeal. After obtaining any necessary authorization, the AOJ should obtain and associate any identified records with the claims file. 2. The AOJ should also obtain any outstanding VA medical records. 3. Then, send the claims file to the appropriate clinician to obtain an addendum opinion with respect to the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood. The claims file must be reviewed by the examiner. If a new examination is deemed necessary to respond to the request, one should be scheduled. After review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder arose in service or are otherwise related to it, to include the alleged in-service stressors. The examiner must address all diagnoses of record, including adjustment disorder with mixed anxiety and depressed mood. The examiner should note the lay statements that the Veteran was not the same since returning from service noted in the Notice of Disagreement received in January 2016 and the June 2017 Board hearing transcript. A complete rationale must be provided for any opinion expressed. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel