Citation Nr: 18156184 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-46 145 DATE: December 7, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is withdrawn. REMANDED Entitlement to service connection for lumbago claimed as lower back condition and arthritis is remanded. FINDING OF FACT In an August 2017 hearing, the Veteran notified VA, prior to the promulgation of a decision by the Board, that he desired to withdraw his claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD on appeal. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1987 through May 1987. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated December 2013, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas (hereinafter Agency of Original Jurisdiction (AOJ)). In its decision, the RO denied service connection for an acquired psychiatric disorder since this disability was neither incurred in nor aggravated by service. The Veteran timely appealed in a Notice of Disagreement (NOD) dated March 2014. In August 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran’s claims file. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative either in a signed statement or on record during a Board hearing. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew his claim for entitlement to service connection for PTSD on record during his August 2017 hearing. See August 2017 Hearing Transcript. Therefore, the Veteran has withdrawn the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND Entitlement to service connection for lumbago claimed as lower back condition and arthritis Although the Board regrets the additional delay, the Veteran’s remaining claim must be remanded before the Board is able to make a determination on the merits. Specifically, the Board finds that additional supporting evidence is required in developing the Veteran’s claim. The AOJ denied the Veteran’s claim for entitlement to service connection for lumbago claimed as lower back condition and arthritis because the evidence failed to show this disability was incurred in or caused by the Veteran’s service. Additionally, the Veteran’s service treatment records did not contain complaints, treatment, or diagnosis for this condition. During the August 2017 hearing, the Veteran testified that his service records said he was diagnosed with a bilateral hip strain, which he contends was a misevaluation. See Hearing Transcript dated August 2017. The Veteran also contends that the same time he finished active duty service, he went to see a private physician who treated him for his disability, but the records have since been destroyed. See Hearing Transcript dated August 2017. The Veteran contends that in 1987 during basic training, he injured his back when he was slammed to the floor. See Medical Record dated July 2014. He states that he was “essentially a paraplegic for a day and a half,” and that “since this time he has had some weakness primarily in the left lower extremity, which has increased recently over the last several months.” See Medical Record dated July 2014. The Veteran also “has difficulty getting in and out of the car because of weakness about the high and thigh area.” See Medical Record dated July 2014. The Veteran reports that his back pain has been fairly constant since this event and that it seems to be worse with prolonged sitting. See Medical Record dated July 2014. While the Veteran underwent a VA examination for his hip and thigh conditions, the Veteran has not undergone a VA examination specifically addressing his back pain. The Board finds that a remand is required in order to obtain a VA examination which fully addresses the etiology of the Veteran’s lumbago claimed as lower back condition and arthritis. Finally, as the Veteran’s claim is being remanded, the Board requests that the AOJ contact the Veteran to ensure all available medical records have been obtained and associated with the claims file. The VA’s duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C. §5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (The VA is charged with constructive, if not actual, knowledge of evidence generated by the VA). Therefore, the AOJ should obtain and associate with the claims file any outstanding VA medical records, assuming they are adequately identified by the Veteran after any necessary clarification. Accordingly, the matter is REMANDED for the following action: 1. The AOJ should contact the Veteran, and, with his assistance, identify any additional outstanding records of pertinent medical treatment for lumbago claimed as lower back condition and arthritis. In obtaining these records, the AOJ is instructed to follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If the AOJ’s attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA medical examination with an appropriate qualified physician. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. See Stegall v. West, 11 Vet. App. 268 (1998). Based upon a review of the entirety of the claims file, the history presented by the Veteran, and his medical records, the examiner is requested to provide an opinion as to the following questions: (a.) Does the Veteran have a current diagnosis for any lumbar disorder, to include lumbago claimed as lower back condition and arthritis? (b.) If the Veteran has a current diagnosis for any lumbar disorder, to include lumbago claimed as lower back condition and arthritis, did this disability arise while the Veteran was in active service or one year following his discharge from active service? If so, is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability was incurred during the Veteran’s active military service? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his symptoms. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case (“SSOC”) and allow the Veteran and his representative an opportunity to respond. 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. §§ 5109B, 7112. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Bristor