Citation Nr: 20026040 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 17-43 462 DATE: April 15, 2020 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for a low back disability is dismissed. Entitlement to service connection for headaches is dismissed. Entitlement to service connection for irritable bowel syndrome, to include as due to an undiagnosed illness, is dismissed. Entitlement to service connection for sleep disturbance, to include as due to an undiagnosed illness, is dismissed. Entitlement to service connection for joint and muscle pain, to include as due to an undiagnosed illness, is dismissed. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and anxiety disorder, is remanded. FINDING OF FACT At the March 2, 2020 Board hearing and in a March 2020 written statement, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal as to entitlement to service connection for bilateral hearing loss, a low back disability, headaches, irritable bowel syndrome, sleep disturbance, joint and muscle pain, and chronic fatigue syndrome. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1986 to September 1990 and from September 1990 to March 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and March 2016 rating decisions. In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing. A copy of the hearing transcript is associated with the record. Withdrawn Claims At the March 2, 2020 Board hearing and in a March 2020 written statement, the Veteran requested to withdraw from appellate review his claims for entitlement to service connection for bilateral hearing loss, a low back disability, headaches, irritable bowel syndrome, sleep disturbance, joint and muscle pain, and chronic fatigue syndrome. 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). 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(a), (b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(a). In the present case, the Veteran’s request for withdrawal was received prior to the promulgation of a decision in the appeal. Therefore, as the Veteran has withdrawn the seven service connection issues noted above, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the withdrawn issues on appeal and the claims are dismissed. REASONS FOR REMAND Unfortunately, the issue remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, MDD, and anxiety disorder, is remanded. As an initial matter, the Board notes that the Veteran has filed individual service connection claims for PTSD, depression, and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a psychiatric disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. During the pendency of the appeal, the Veteran has been diagnosed with PTSD, MDD, and an anxiety disorder. In light of the Court’s holding in Clemons, the Board has recharacterized the Veteran’s service connection claim to include all currently-diagnosed acquired psychiatric disorders. The Veteran contends that his PTSD is due to traumatic events that occurred during service while serving onboard Navy ships in the Persian Gulf. In one incident, the Veteran’s ship was sent to relieve another ship that had been hit by Iraqi fighter jets and he witnessed the destruction to the ship and crew. In another incident, his ship salvaged the wreckage of a downed helicopter and recovered the remains of fellow servicemembers. The Board notes that the Regional Office (RO) has never undertaken development to attempt to verify the Veteran’s claimed in-service stressors. Therefore, remand is required for the RO to undertake all appropriate action to develop the Veteran’s claimed stressors. Moreover, the Board notes that the Veteran underwent a VA PTSD examination in May 2017. However, upon examination, the VA examiner determined that the Veteran does not meet the diagnostic criteria for PTSD and, therefore, did not provide an etiology opinion. As such, a VA medical opinion has not yet been obtained on the Veteran’s behalf to assess the nature and etiology of any of his currently-diagnosed acquired psychiatric disorders. Therefore, the Board finds that, on remand, an adequate VA medical opinion must be obtained before the Board can render an informed decision on the Veteran’s claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requested opinion must adequately address all psychiatric disorders diagnosed during the pendency of the claim, even if not currently present or deemed resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Prior to scheduling an examination, all outstanding medical records should be associated with the claim file. Specifically, during the March 2020 Board hearing, the Veteran testified that he has been going to the Vet Center in Arizona since 2016. However, none of the treatment records are associated with the claims file. The matter is REMANDED for the following actions: 1. Undertake appropriate efforts to attempt to verify the Veteran’s reported in-service PTSD stressors. Requests should be made to all appropriate official sources, including, but not limited to, the Joint Services Records Research Center. All attempts to verify the Veteran’s reported stressors must be documented in the claims file. If the stressors are not verifiable, the Veteran must be notified and given an opportunity to respond. 2. Obtain all outstanding mental health treatment records identified and authorized by the Veteran, to include Vet Center records (specifically from 2016 to the present – as identified during the March 2020 Board hearing). 3. Then, schedule the Veteran for a VA examination with the appropriate medical professional to determine the nature and etiology of any currently-diagnosed acquired psychiatric disorder, to include PTSD, MDD, and/or anxiety disorder. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Set forth all currently-diagnosed acquired psychiatric disorders, including those diagnosed during the pendency of the appeal, even if currently resolved. (b) If the examiner finds that a diagnosis of PTSD is warranted, is it at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD is related to the Veteran’s claimed in-service stressor(s), or otherwise related to any other in-service event? If the examiner finds that a diagnosis of PTSD is not warranted, this finding must be reconciled with the PTSD diagnoses of record, including that rendered by Dr. S.F.H. upon private evaluation in December 2019. (c) Is it at least as likely as not (50 percent probability or greater) that any other psychiatric disorder diagnosed during the pendency of the appeal was incurred in or caused by the Veteran’s active duty service? In responding to the above, the examiner must consider and address the June 1987 service treatment record showing an in-service diagnosis of adjustment disorder with mixed emotions and mixed personality disorder. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner’s report reconcile the pertinent evidence of record, to include the Veteran’s lay statements, hearing testimony, service treatment records, post-service medical records, including the May 2017 VA examination and January 2020 private medical opinion, and any other pertinent lay evidence of record, to include the February 2020 Buddy Statement by J.B. Additionally, the examiner is advised that the Veteran is competent to report his psychiatric symptoms and history and such reports must be acknowledged and considered in formulating any opinion. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed psychiatric disorder and military service. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner’s clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.