Citation Nr: 18160881 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-57 207 DATE: December 28, 2018 ORDER Entitlement to service connection for irritable bowel syndrome (IBS) is dismissed. REMANDED Entitlement to service connection for Meniere’s disease is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, is remanded. FINDING OF FACT On the record at the March 2018 Board hearing, before promulgation of a decision on the appeal, the Veteran withdrew his appeal for entitlement to service connection for IBS. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for IBS have been met. 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 from October 1984 to November 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran and his spouse, in Shreveport, Louisiana, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Dismissal Entitlement to service connection for IBS. 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(d)(5). At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 20.204. On the record at the March 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal for entitlement to service connection for IBS in accordance with 38 C.F.R. § 20.204. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. In addition, the withdrawal was in the presence of the Veteran’s representative. The withdrawal was received by the Board prior to the promulgation of a decision on the appeal. Based on the foregoing, there remain no allegations of error of fact or law for appellate consideration as to this issue. The Board has no jurisdiction to review the appeal for entitlement to service connection for IBS; thus, the appeal for that issue is dismissed. See 38 C.F.R. § 20.202. REASONS FOR REMAND 1. Entitlement to service connection for Meniere’s disease is remanded. Initially, the Board notes the Veteran’s contention that he received treatment for dizziness during service at military hospitals while stationed in Germany; Fort Riley, Kansas; Aberdeen, Maryland; and Korea, but that those records have not been associated with the claims file. Accordingly, the Agency of Original Jurisdiction (AOJ) should obtain all in-service treatment at military hospitals. The Veteran contends that his Meniere’s disease manifested during service following a motor vehicle accident (MVA) in July 1985. He further contends that in-service complaints of dizziness, headaches, tinnitus, and hearing loss demonstrate that Meniere’s disease had its onset during his period of active service. The July 2013 VA examiner did not have the opportunity to consider lay evidence presented at the March 2018 hearing; thus, the VA examination is incomplete as not all of the facts were before the VA examiner. Accordingly, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of Meniere’s disease. The Board acknowledges opinions by M.A.A. in May 2013 and V.I.P. in July 2017 that Meniere’s disease is related to service, but finds that those opinions cannot form the basis of a grant of service connection, as they are not supported by adequate rationales. 2. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, is remanded. The Veteran contends that he developed symptoms of anxiety and depression following an MVA in July 1985. At the March 2018 hearing, the Veteran’s spouse testified that she noticed a change in personality following the MVA; specifically, that the Veteran was less outgoing and more withdrawn. The Veteran also contends that a current psychiatric disorder is related to the in-service deaths of two soldiers—one was a homicide and the other a drowning. The July 2013 VA examiner did not have the opportunity to consider lay evidence presented at the March 2018 hearing; thus, the VA examination is incomplete. Accordingly, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of all diagnosed acquired psychiatric disorders. The Board acknowledges opinions by M.A.A. in May 2013 and V.I.P. in July 2017 that anxiety disorder is related to service, but finds that those opinions cannot form the basis of a grant of service connection, as they are not supported by adequate rationales. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 2. Obtain records of any inpatient treatment at military hospitals in Germany; Fort Riley, Kansas; Aberdeen, Maryland; and Korea. Document all requests for information as well as all responses in the claims file. 3. After completing directives #1 and 2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of Meniere’s disease. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: Whether it is at least as likely as not (50 percent or greater probability) that Meniere’s disease manifested during or is otherwise related to the Veteran’s period of active service, to include due to a July 1985 MVA. The clinician is to consider and address (i) whether in-service complaints of and/or treatment for dizziness, hearing loss, tinnitus/ringing of the ears, and headaches demonstrates that Meniere’s disease had its onset during the Veteran’s period of active service; and (ii) the May 2013 opinion by M.A.A. in and July 2017 opinion by V.I.P. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing directives #1-2, schedule the Veteran for an examination by a VA psychologist or psychiatrist to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all acquired psychiatric disorders that are currently present (or present any time from November 27, 2012, to the present). Specifically, the examiner should state whether anxiety disorder and depressive disorder are present during the period on appeal. The examiner is to clearly explain how the diagnostic criteria have or have not been met under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed acquired psychiatric disorder manifested during or is otherwise related to the Veteran’s period of active service, to include due to (i) the July 1985 MVA; and/or (ii) deaths of fellow soldiers during service. The examiner is to consider and address: (i) lay evidence by the Veteran and his spouse as to the onset of psychiatric symptoms and change in the Veteran’s behavior following the 1985 MVA; (ii) the May 2013 opinion by M.A.A. and July 2017 opinion by V.I.P; and (iii) whether in-service symptoms of chest pains and headaches demonstrate that an acquired psychiatric disorder had its onset during active service. (c.) Whether it is at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder is proximately due to a service-connected disability. (d.) Whether it is at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel