Citation Nr: 21010532 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-23 617 DATE: February 25, 2021 ORDER The appeal for entitlement to service connection for an acquired psychiatric disorder to include as secondary to service-connected disabilities is dismissed. REMANDED The claim of entitlement to service connection for a right thigh disability claimed as right thigh injury (hereinafter right thigh condition) is remanded. FINDINGS OF FACT 1. On March 16. 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to the Veteran’s claim for service connection for PTSD. 2. On September 7, 2018, the Veteran filed a new claim for service connection for depression, secondary to tinnitus. The Veteran’s claim was denied in a rating decision issued October 2018. The Veteran did not file a Notice of Disagreement (NOD) during the applicable appeal period. 3. In March 2019 the Veteran filed a claim for PTSD due to MST. In April 2019, VA correspondence sent to the Veteran indicated that his claim for service connection needed the proper form and provided the Veteran with a list of options. 4. The Veteran then filed a Supplemental Claim in April 2019 for PTSD due to MST. The Veteran was informed through VA correspondence in May 2019 that his April 2019 supplemental claim was not able to be processed as a decision on his claim for PTSD due to MST had not yet been made, his claim was being reviewed, and the Veteran would be notified. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran and his authorized representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). 2. The October 2018 rating decision that denied service connection for a depression secondary to tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from May 1985 to April 1986, the Veteran also had Army National Guard service from March 1985 to May 1991. These matters are before the Board of Veteran’s Appeals (Board) from the January 2014 rating decision and October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a right thigh condition, tinnitus, PTSD, and depression secondary to tinnitus. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veteran’s Claims (Court) held that the scope of a mental health 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. See also 38 C.F.R. § 3.159 (a)(3) (2018). The Board notes that the issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities was previously limited to simply entitlement to service connection for PTSD and service connection for depression secondary to tinnitus. However, the Court of Appeals for Veterans Claims (Court) has held that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, in light of Clemons and the current evidence of record, the issue has been broadened and recharacterized as reflected above. The Board notes that the Veteran’s appeal also contained a service connection claim for tinnitus, which was granted in a November 2016 rating decision. That award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge at the RO in Los Angeles, California, in September 2020. A written transcript of that hearing has been prepared and associated with the evidence of record. REFERRED The issue of entitlement to service connection for PTSD due to MST was raised in a supplemental claim submitted April 2019 and in September 2020 testimony and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication and for issuance of a rating decision on the Veteran’s claim. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities 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 correspondence to the Board in March 2018, the Veteran expressed the intent to withdraw his appeal with respect to the issue of PTSD pending before the Board. The Board recognizes that action was taken after the March 2018 withdrawal of the Veteran’s claims for service connection for PTSD but the Veteran’s withdrawal of his claim was clear. In September 2018, the Veteran filed a claim for service connection for depression secondary to tinnitus which was denied in the October 2018 rating decision. The Veteran did not file a NOD to the October 2018 rating decision which became final. 38 C.F.R. § 19.52 (2019). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and the appeal is dismissed. However, the Board also notes that the Veteran’s supplemental claim for service connection for PTSD due to MST filed in April 2019 is still to be addressed by the AOJ, as per the correspondence from VA issued May 22, 2019. This correspondence indicated VA has not decided the Veteran’s supplemental claim for PTSD due to MST. This claim is not dismissed and is to be addressed in a separate rating decision from the AOJ under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review which was signed into law by the President on August 23, 2017. As the RO has yet to issue a rating decision the issue is not before the Board and cannot be addressed herein. REASONS FOR REMAND Entitlement to service connection for a right thigh condition The Veteran contends that he is entitled to service connection for a right thigh condition. The Board notes that the Veteran testified at a hearing in September 2020 that he injured his right thigh in service, was put on light duty, provided a profile, and then continued to have issues since service along with weakness and pain. The Board finds that the Veteran’s testimony is competent, credible, and with significant probative weight. The Board finds that the Veteran’s service treatment records seem to be incomplete for his active duty service with the Army between May 1985 and April 1986, and with the Army National Guard from March 1985 to May 1991. This includes the Veteran’s testimony about his service in Korea in March 1987 to April 1987, previous development focused on May 1987 which was inaccurate. Upon remand VA will make every reasonable effort to obtain the Veteran’s service treatment records and will provide the Veteran with a VA examination for his right thigh condition. These matters are REMANDED for the following actions: 1. Take all appropriate actions to attempt to obtain missing service treatment records for active duty, Army National Guard, and any Reserve service of the Veteran. 2. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After the above development the Veteran should be scheduled for a VA examination, (a telehealth examination is also an option) regarding the nature and etiology of his right thigh condition. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Identify any and all right thigh conditions the Veteran currently suffers from. (b.) Opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service, or National Guard service. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Appellant and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.