Citation Nr: 21067037 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-01 327 DATE: November 3, 2021 ORDER As the claim is withdrawn, the claim of entitlement to service connection for an acquired psychiatric disorder is dismissed. REMANDED Entitlement to service connection for dental disability for compensation purposes is remanded. Entitlement to recognition of M.H. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment is remanded. FINDING OF FACT On June 16, 2021, prior to the promulgation of a decision in the appeal, the Veteran notified the Board at his hearing on appeal that he sought to withdraw his claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to service connection for an acquired psychiatric disorder by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to May 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of additional evidence. Evidence was subsequently submitted by the Veteran. Lastly, it is noted that because a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board has recharacterized the issue to include a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). Entitlement to service connection for an acquired psychiatric disorder. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran (appellant) notified the undersigned VLJ at the June 16, 2021, hearing on appeal that he sought to withdraw his appeal for the claim of entitlement to service connection for an acquired psychiatric disorder. This request was clear, unambiguous and made with full understanding of the consequences and in consultation with his representative. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this matter and it is dismissed. REASONS FOR REMAND Aside from the below explicit findings, in remanding these matters, the Board makes no further finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for dental disability for compensation purposes is remanded. The Veteran is seeking entitlement to service connection for a dental disability. The Veteran contends that he damaged his two front teeth, numbers 8 and 9, while in service. See Hearing Transcript 11-13 (June 2021). The Board finds that remand is necessary. First, the Board notes that the Veteran's separation examination report indicates tooth numbers 8 and 9 as "restorable teeth." The report also shows that tooth numbers 1, 16, 17, and 32, were removed during service. Second, the Board finds competent, credible evidence of in-service injury, described as a rifle barrel cracking and chipping tooth numbers 8 and 9. Id. at 11. In this regard, although the Veteran's service dental records are unavailable, the Veteran competently, and credibly testified to his in-service injury. Further, his separation examination report indicates injury to tooth numbers 8 and 9. Moreover, the Board observes that his entrance examination is absent any deformity or defect for tooth numbers 8 and 9. Thus, the Board finds competent, credible evidence of in-service injury. Therefore, the record reveals competent, credible evidence of a current disability, or persistent or recurrent symptoms of a disability, and an in-service injury. However, VA did not obtain an examination or medical opinion in this matter, and VA's duty to obtain a VA medical opinion and examination was triggered. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006) (evidence needed to trigger VA's duty to furnish an examination is low). Therefore, given the above, there is competent evidence of a potential relationship between the Veteran's dental disability and his military service to warrant remand for a VA examination and medical opinion. Id. at 79. 2. Entitlement to recognition of M.H. as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded. The Veteran, and his representative, contends that his son, M.H., should be recognized as a helpless child for purposes of VA benefits. Specifically, the Veteran argues that his son remains, and prior to the age of 18, permanently incapable of self-support. For reasons explained below, the Board finds that remand is necessary. First, the Board notes that veterans with a disability compensation rating of not less than 30 percent may be entitled to additional compensation for dependents, including children. 38 U.S.C. §§ 1115(2); 38 C.F.R. § 3.4(b)(2). As relevant to this case, a child is defined as an unmarried person, "who, before attaining the age of eighteen years, became permanently incapable of self-support." 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a)(1)(ii). Here, the Veteran currently has no service-connected disabilities, and, therefore, has no VA disability compensation rating. Thus, the Board finds the Veteran's claim is inextricably intertwined with the claim of entitlement to service connection for dental disability for compensation purposes. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claim. Second, the Board observes that the record reasonably identifies relevant outstanding non-VA treatment records. Specifically, at the Board hearing, the Veteran testified that prior to the age of 18, M.H. obtained private treatment from Dr. Singer at John Hopkins, Baltimore. Although the Veteran submitted a single private treatment record from this provider, the record does not reveal that VA has attempted to obtain all private treatment records from this provider, to include asking the Veteran to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the Veteran's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is also required to allow VA to obtain these records. 3. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment is remanded. The Board must address all issues explicitly raised by the Veteran or reasonably raised by a liberal reading of the record; consistent with this principle, a claim for service connection for a dental condition for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. See Mays, 5 Vet. App. 302. The Board further notes that, as to each noncompensable service-connected dental condition, a determination will be made regarding whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b). The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). In this case, the agency of original jurisdiction (AOJ) did not refer the claim of service connection for a dental disability for purposes of VA outpatient treatment purposes. As such, the Board finds that a remand is appropriate here. A remand with instructions to the AOJ to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, will better ensure that the claim is addressed promptly and efficiently, and is, therefore, consistent with the uniquely pro-claimant principles underlying the veterans' benefits system. Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). The matters are REMANDED for the following actions: 1. Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) of the VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. 2. Ask the Veteran to complete a VA Form 21-4142 for all medical providers seen for M.H.'s mental and/or physical disorders that precluded his ability for self-support existing prior to or at age 18 years old, to include John Hopkins, Baltimore. Ideally, these records identified would include those dated prior to or at age 18 years old. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Ask the Veteran to also complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and treatment of his dental disability, to include from Dr. Bailey. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any dental disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any dental disability. The examiner must opine on: (a) Whether the Veteran has any current compensable dental disability (see 38 C.F.R. § 4.150) at any time during or approximate to the pendency of the claim. (b) If so, opine on whether the dental disability is at least as likely as not the result of in-service trauma or disease (such as osteomyelitis, but not periodontal disease). Consider and expressly address conceded in-service injury, described as rifle barrel cracking and chipping tooth numbers 8 and 9. Explain. 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.