Citation Nr: 20008294 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 18-20 356 DATE: January 31, 2020 ORDER The appeal as to the claim of entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) from April 19, 2017, is dismissed. REMANDED The claim of entitlement to a disability rating higher than 50 percent for PTSD prior to April 19, 2017, is remanded. The claim of entitlement to service connection for a cerebrovascular accident (CVA), claimed as secondary to service-connected hypertension, is remanded. FINDING OF FACT In a February 2018 letter and during a November 2019 Board of Veterans’ Appeals (Board) hearing, prior to the promulgation of an appellate decision, the Veteran’s attorney indicated that the Veteran wished to withdraw from appeal the matter of entitlement to a disability rating higher than 70 percent for PTSD from April 19, 2017. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the matter of entitlement to disability rating higher than 70 percent for PTSD from April 19. 2017, are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to April 1995. This appeal to the Board arose from June 2015 and November 2016 rating decisions by Department of Veterans Affairs (VA) Regional Office (ROs). In the June 2015 rating decision, the RO continued a 50 percent rating for PTSD (previously rated as anxiety disorder not otherwise specified). In the November 2016 rating decision, the RO denied entitlement to service connection for CVA, also claimed as stroke. The Veteran timely disagreed with, and perfected an appeal as to, the denial of each claim. During the pendency of the appeal, in a September 2017 rating decision, the RO increased the disability rating for the Veteran’s PTSD to 70 percent, effective April 19, 2017. In November 2019, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). DISMISSAL 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 a claimant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in a February 2018 letter, the Veteran’s attorney clearly asserted that the Veteran wished to withdraw from appeal his claim for a higher rating for PTSD. During the November 2019 Board hearing, the Veteran’s attorney clarified that the Veteran did not wish to withdraw from appeal the claim of entitlement to a higher disability rating for PTSD prior to April 19, 2017, but only the matter of entitlement to a rating higher than 70 percent for PTSD from that date. Thus, no allegations of errors of fact or law remain for appellate consideration regarding this matter. Accordingly, the Board does not have jurisdiction to review the claim, and the appeal as to this matter must be dismissed. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the remaining claims on appeal is warranted. With respect to the Veteran’s service connection claim, the record indicates that he suffered a CVA, specifically, a cerebral infarction due to embolism, in August 2016. He has contended that his CVA was the result of his service-connected hypertension. In connection with the claim, the Veteran was afforded a VA-contracted examination in September 2016. In the examination report, the examiner noted that the Veteran had suffered a cerebral infarction, but that it had resolved. In an accompanying opinion, the examiner indicated that the claimed CVA was less likely than not proximately due to or the result of service-connected condition. The examiner indicated that there was no current diagnosis because the condition had resolved. Notably, while the examiner cited to medical evidence in the record in apparent support for his conclusions, all cited evidence was dated prior to the Veteran’s CVA in August 2016. Moreover, the examiner did not address the Veteran’s assertions as to the residual problems since his CVA. VA treatment records document his reports as to continuing to experience numbness in his extremities, particularly his left arm, and in his lips. During his November 2019 Board hearing, the Veteran testified that he also continued to experience tremors in his extremities, dizziness, and headaches. Accordingly, the Board finds that the September 2016 VA-contracted examination is inadequate, and that remand is warranted to afford the Veteran a new VA examination for his claimed CVA. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain clear conclusions with supporting data); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With respect to the Veteran’s claim for a higher rating for PTSD prior to April 19, 2017, there appear to be pertinent, outstanding medical records. The record indicates that the Veteran has received regular VA mental health treatment for his PTSD. In this regard, during his Board hearing, the Veteran testified that he saw a VA therapist once per month, and a psychiatrist once every six months. Additionally, review of his VA treatment records indicates that his prescription for Clonazepam to treat PTSD symptoms had been filled in May 2016; however, no VA clinical treatment records dated between April 2013 and September 2016, other than a March 2016 patient education report, have been associated with the claims file. Mental health treatment records dated during this period may well be relevant to the Veteran’s claim for a higher rating prior to April 19, 2017. Also, in September 2016, the Veteran provided VA authorization (on VA Form 21-4142) to obtain his clinical treatment records from the Robinson Health Clinic at Womack Army Medical Center (WAMC), dated from August 2016 to present. While clinical treatment records from the Joel Health Clinic at WAMC, dated in October 2016, were associated with the claims file, there is no indication whether efforts were made to obtain treatment records dated since August 2016 from the Robinson Health Clinic at WAMC. Therefore, while both remaining matters are on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through December 2017. Thus, in addition to obtaining the Veteran’s outstanding VA treatment records dated from April 2013 to September 2016, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since December 2017 (which may be pertinent the service connection claim). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to any claim(s) on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In the letter, the AOJ should specifically request that the Veteran furnish, or furnish current authorization to obtain, all records of the Veteran’s treatment at the Robinson Health Clinic at WAMC, as well as from any other private (non-VA) provider(s). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § §§ 5103, 5103A; 38 C.F.R. § § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. These matters are hereby REMANDED for the following action: 1. Obtain a complete copy of all records of VA evaluation and/or treatment of the Veteran’s, to specifically include mental health evaluation and/or treatment, dated between April 2013 and September 2016. Also obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since December 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish current authorization to obtain, records of all clinical treatment rendered at the Robinson Health Clinic at WAMC, as well as from any other private (non-VA) provider(s). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current 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 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 from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a new VA examination for his claimed CVA, by an appropriate physician. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify and describe all residuals of the Veteran’s cerebral infarction, to include any numbness in his extremities (particularly the left arm) and lips, tremors in his extremities, dizziness, and headaches, currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability), that the Veteran’s CVA with residuals (a) was caused OR (b) is or has been aggravated (worsened beyond the natural progression) by the Veteran’s service-connected hypertension. Both causation and aggravation should be addressed. If aggravation is found, the physician should attempt to quantify the extent of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In rendering the requested opinions, the physician must consider and discuss all relevant medical evidence, and all lay assertions as to the nature, onset, and continuity of symptoms (to include as documented in the Veteran’s VA medical records and in the transcript of the Board hearing). The physician is advised that the Veteran is competent to report his symptoms, and that his assertions in this regard must be considered and discussed in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.