Citation Nr: 21073509 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-14 725A DATE: December 8, 2021 ORDER The appeal as to the issues of entitlement to service connection for shortness of breath, hearing loss, and tinnitus is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and/or posttraumatic stress disorder (PTSD), due to military sexual trauma, is remanded. Entitlement to service connection for a left wrist disorder is remanded. Entitlement to service connection for a dental disorder, for compensation purposes, is remanded. FINDING OF FACT In a May 2015 written statement, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw the appeal as to the issues of entitlement to service connection for shortness of breath, hearing loss, and tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the appeal have been met with respect to the issues of entitlement to service connection for shortness of breath, hearing loss, and tinnitus. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1977 to July 1980. He also had additional reserve duty service. This matter comes before the Board on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Acting Veterans Law Judge in June 2021. A transcript of that hearing has been associated with the claims file. With regard to the dental disorder claim, the Board notes that while the claim was adjudicated as a claim for entitlement to service connection, a claim of service connection for a dental disability for compensation purposes is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). As the issue has not yet been adjudicated by the appropriate VA Medical Center (VAMC), the Board does not have jurisdiction over it, and it is REFERRED for appropriate action. Law and Analysis Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 a May 2015 written statement, the Veteran indicated that he was limiting his appeal and therefore, withdrew his appeal as to the issues of entitlement to service connection for shortness of breath, hearing loss, and tinnitus. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues, and the claims are dismissed. REASONS FOR REMAND The Board finds that a remand is necessary in this case for additional development. The Veteran has reported injuring his left wrist, trauma to his teeth, and a resulting psychiatric disorder(s) following an in-service military sexual trauma. Review of his in-service medical records shows that the Veteran fractured his left wrist and was seen for dental trauma in June 1979, while in service. Following service, the Veteran was diagnosed with depression and has attended a PTSD support group. While the Veteran was initially scheduled for VA examinations, he was unable to attend as he was incarcerated at the time. Evidence of record indicates that the Veteran has subsequently been released. Therefore, the Board finds that the AOJ should reschedule VA examinations for the Veteran's disorders. On remand, the AOJ should also conduct any required development for the Veteran's acquired psychiatric disorder claim in accordance with 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.304 (f)(5), and attempt to verify the Veteran's reported stressor of military sexual trauma. The AOJ should also ensure that that adequate steps were taken to obtain July 1980 records from the "J.E. Pyeatte, Medical Center" in Oklahoma, listed in the February 2015 medical release submitted by the Veteran. Additionally, it appears that the medical records request for the Bill Willis Community Mental Health Center was returned to the RO and indicated that the name of the provider seen at the facility was required. It does not appear from the record that the RO obtained a corrected release. Upon remand, the AOJ should provide notice to the Veteran that a provider name at that facility is needed. The AOJ should then attempt to obtain these records. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric disorders, dental disorder, and left wrist disorder, to include July 1980 records from the J.E. Pyeatte, Medical Center in Oklahoma and the name of the provider who treated the Veteran at the Bill Willis Community Mental Health Center. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. Provide the Veteran with appropriate notice of VA's duties to notify and to assist under 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.304 (f)(5). The Veteran should be properly notified of how to substantiate a claim of military sexual trauma and should be informed of alternative sources of evidence that can be used to verify claimed military sexual trauma stressors. 3. The AOJ should make any necessary requests to verify the Veteran's stressor statements regarding military sexual trauma, potentially including incident reports from the Veteran's military base in or around June 1979, or any other records that may exist to corroborate the Veteran's assertions in order for the event to qualify as a stressor. This may also involve obtaining signed authorization and consent forms from the Veteran. Corroboration may be through evidence from sources other than service records, including after-the-fact medical evidence and lay statements from friends and/or family members. 4. After the above development has been completed, the Veteran should be afforded a VA dental examination to determine the nature and etiology of any dental disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should note that service treatment records from June 1979 show that the Veteran was examined for trauma to teeth 25 through 27. Such records also note a fractured right mandibular tooth and mandible with incision. The examiner should then respond to the following questions: a) Identify any current dental disorders or residuals thereof. b) For any dental disorders or residuals found, determine whether there is also bone loss (or loss of the substance of the body) of the maxilla or mandible. c) If the answer to paragraph b) is affirmative (i.e., there is bone loss or loss of the substance of the body of the maxilla or mandible), is it at least as likely as not that this bone loss caused the identified dental disorder? d) If the answer to paragraph c) is affirmative, is it at least as likely as not that this bone loss was caused by in-service trauma or disease, to include the 1979 in-service trauma? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify any current psychiatric disorders. In so doing, the examiner should consider the diagnoses of record and the results of any testing performed. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, any stressors related to fear of hostile military or terrorist activity, and any personal assault he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are reflective of the occurrence of an in-service personal assault, to include the unexcused absences and negative performance review. 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. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any left wrist disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left wrist disorder that is causally or etiologically related to his military service, to include any injury or symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED