Citation Nr: 20007167 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-58 931 DATE: January 28, 2020 ORDER Entitlement to service connection for tinnitus has been withdrawn. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder and depressive disorder, is remanded. Entitlement to service connection for a left knee condition is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew her claim of service connection for tinnitus pending before the Board. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1990 to December 1990 and January 1991 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. 23 Vet. App. 1, (2009). In this case, the Veteran seeks service connection for anxiety and depression; however, upon further medical development, treatment records may reveal other acquired psychiatric disorders. Therefore, the Board has characterized the issue as entitlement to an acquired psychiatric disorder, to include anxiety and depression. In September 2019, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the record is associated with the claims file. Entitlement to service connection for tinnitus Withdrawn claims are decided as a matter of law, and therefore, no discussion of VA’s duties to notify and assist is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). 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. A substantive appeal may be withdrawn by a Veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 During the September 2019 hearing, the Veteran and her representative withdrew the appeal for the claim of entitlement to service connection for tinnitus before the Board. Thus, there remains no allegation of error of fact or law for the Board to address with respect to this issue. Accordingly, the Board does not have jurisdiction over this issue, and dismissal is warranted. REASONS FOR REMAND REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder and depressive disorder, is remanded. The Veteran contends that her anxiety and depression are related to her military service. Considering the record in light of VA’s duties to assist, the Board finds that all action needed to fairly adjudicate the claim on appeal have not been accomplished. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The Veteran has submitted a VA-21-078, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Trauma. The Veteran asserts that while in service, she was the unfortunate victim of rape which has led to many years of therapy and medication to deal with the anxiety and depression associated with the sexual trauma. The Veteran recalls calling her mother crying right after the assault occurred and subsequently lived in anxiety and fear of being attacked again thereafter. Upon knowledge of her pregnancy, the Veteran was afraid to tell her husband about the rape incident and was uncertain about the paternity of her unborn child. Following the birth of the child, the Veteran reported that she started to use drugs to help cope with the distress. She further asserts that this led to drinking and drove her into deeper depression. The incident also affected the Veteran’s sexual relationship with her husband, which eventually led to the demise of her marriage. The Veteran has submitted a statement from her mother, corroborating the details surrounding the stressor and confirming she was the first person the Veteran called immediately after the assault occurred. As an initial matter, the Board notes that the record contains duty to assist letters pertaining to the Veteran’s other claims but does not reflect correspondence that addresses the Veteran’s claim for service connection for an acquired psychiatric disability due to personal trauma. The Board notes that, where a stressor involves a personal assault, VA has additional notice and development duties; notifying a claimant that records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, physicians, and other sources could help substantiate the claim. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. See 38 C.F.R. § 3.304 (f)(5). Credible supporting evidence may also consist of a medical opinion, based on review of the evidence, that the personal assault occurred. 38 C.F.R. § 3.304 (f)(5); Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). In the present case, the RO should have issued the Veteran a duty to assist letter that specifically addresses evidence needed to substantiate a claim of service connection for anxiety and depression, to include that claimed due to personal assault/military sexual trauma (MST). See Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Hence, a remand of the claim for service connection for full compliance with VA’s notice requirements is warranted. The Board also notes, at present, the probative medical evidence of record does not contain a VA examination or medical opinion discussing the etiology of the Veteran’s acquired psychiatric disabilities, to include anxiety and depression. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. A February 2019 letter from M.K., LMSW of the MPA Group noted that the Veteran had been engaged in outpatient therapy, including cognitive behavioral therapy and eye movement desensitization and reprocessing therapy, for reoccurring depressed episodes and anxiety due to traumatic events occurring in 1989 and 1990, during her time of service. In the present case, the Veteran has submitted medical evidence of a current disability, evidence of an in-service injury, and an indication that the current disability began during service, the Board finds a VA examination and opinion should be obtained to determine the nature of the Veteran’s acquired psychiatric disorders. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon, 20 Vet. App. at 83. 2. Entitlement to service connection for a left knee condition is remanded. In March 2014, the Veteran submitted a timely notice of disagreement with the August 2013 rating decision that denied service connection for a left knee disability; however, a statement of the case has not been issued. Therefore, a remand is required for issuance of a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all outstanding treatment records, including VA and private treatment records. All efforts to obtain additional evidence must be documented in the claims file. 2. Send the Veteran and her representative a letter requesting the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. In the letter, provide the Veteran with appropriate notice pertaining to what is needed to substantiate her service connection claim for an acquired psychiatric disability, to include anxiety and depression. This letter must include notice consistent with 38 C.F.R. § 3.304 (f)(5) related to in-service personal assaults. 3. Based on the Veteran’s responses, obtain all identified evidence not currently of record following the procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file and stressor development has been completed, schedule the Veteran for an examination to determine the nature and etiology of any current acquired psychiatric disability. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. A complete history should be elicited from the Veteran. The examiner must indicate all current psychiatric disabilities, and any found during the appeal period. The examiner must specifically determine whether the Veteran has anxiety and/or depression based on a verified stressor. For any diagnosed acquired psychiatric disorder, the examiner must provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the disorder is related to service, to include her asserted stressors therein. Please specifically determine whether the Veteran meets the criteria for a diagnosis of PTSD and, if so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran exhibited any behavioral changes during service or after service that are reflective of the occurrence of personal assault during service? Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. (b) If the VA examiner believes that behavioral changes are reflective of the occurrence of in-service assault trauma, is it at least as likely as not (i.e., 50 percent or greater probability) any current PTSD symptomatology is attributable to the occurrence of in-service assault? In rendering an opinion, the examiner should consider the Veteran’s lay statements, and the Veteran’s November 2019 buddy statement regarding the Veteran’s mental state both during and after service, and the February 2019 private opinion from M.K., LMSW. The examiner must provide a rationale in support of all opinions provided. In providing the opinion(s), the examiner must consider the Veteran’s mental health history as well as the findings documented at the time of the examination. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 5. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to service connection for a left knee disability. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration 6. Readjudicate the claim of service connection for an acquired psychiatric disability. If the benefit is not granted to the Veteran’s satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.