Citation Nr: 21012001 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-25 204 DATE: March 3, 2021 ORDER The claim of entitlement to service connection for high blood pressure is dismissed. The claim of entitlement to service connection for a heart disorder is dismissed. The claim of entitlement to service connection for a stomach disorder is dismissed. The claim of entitlement to service connection for weak vision is dismissed. REMANDED The claim of entitlement to service connection for a psychiatric disorder is remanded. FINDING OF FACT During his July 2020 hearing, prior to the promulgation of a decision in the appeal, the appellant informed the Board that he desired to withdraw his appeal as to the issues of entitlement to service connection for high blood pressure, a heart disorder, a stomach disorder, and weak vision. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal by the appellant for the issue of entitlement to service connection for high blood pressure have been met 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal by the appellant for the issue of entitlement to service connection for a heart disorder have been met 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal by the appellant for the issue of entitlement to service connection for a stomach disorder have been met 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal by the appellant for the issue of entitlement to service connection for weak vision have been met 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant had an initial period of active duty for training in the Army National Guard from January 21, 1980, to March 24, 1980. In July 2020, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 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 mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. In compliance with this case law, the Board considers the appellant’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD) as one that encompasses any psychiatric disorder al information only where relevant to the adjudication of the issues on appeal. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 1. Entitlement to service connection for high blood pressure. Please see discussion in paragraph 4. 2. Entitlement to service connection for a heart disorder is. Please see discussion in paragraph 4. 3. Entitlement to service connection for a stomach disorder. Please see discussion in paragraph 4. 4. Entitlement to service connection for weak vision. In the present case, during his July 2020 Board hearing, the appellant explicitly and unambiguously indicated that he wished to withdraw his appeal as to the issues of entitlement to service connection for high blood pressure, a heart disorder, a stomach disorder, and weak vision. In Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the United States Court of Appeals for Veterans Claims’ holding in that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the veteran. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In this case, the undersigned Veteran’s Law Judge explained the consequences of the withdrawal to the appellant. The appellant was allowed to ask questions regarding his withdrawal and stated that he understood. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and the appeal is dismissed. REASONS FOR REMAND The claim of entitlement to service connection for a psychiatric disorder is remanded. The appellant asserts that his psychiatric disorder was caused by an incident that occurred during a period of active duty for training (ACDUTRA) from January 1980 to March 1980. A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1 (d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6 (c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6 (d). An individual who has served only on ACDUTRA or INACDUTRA must establish a service-connected disability in order to achieve veteran status and to be entitled to compensation. Initially, the Board notes that the appellant’s service treatment records and service personnel records are incomplete. On remand, the AOJ should contact the Georgia Army National Guard and attempt to obtain the appellant’s outstanding service treatment records and service personnel records. The appellant’s personnel records show that he was released from initial active duty training because he was nonproductive. In October 2012 and January 2017, the appellant reported that he was physically assaulted by two drill sergeants. A June 2020 private medical record noted that the appellants psychiatric symptoms began after he sustained a gunshot wound in the 1990s. At the July 2020 hearing, the appellant reported that he was taken into the bathroom and punched in the stomach, which caused him to vomit. He testified that he reported the incident to the lieutenant, who encouraged him to continue with basic training. He stated that he was offered the opportunity to be transferred to another unit, but he declined and chose to separate from service. The appellant testified that he started having feelings of mistrust and anxiety attacks during service. The appellant has not been afforded a VA examination with respect to his claim for service connection for a psychiatric disorder. Generally, VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board finds the low threshold necessary to provide an examination has been established in this case. Finally, the evidence of record indicates that the Veteran received Social Security Administration (SSA) benefits. The record does not reflect that development has been undertaken to obtain any SSA records. As the records could have a dispositive effect on the appellant’s claim, the RO must attempt to obtain the appellant’s SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. The AOJ should obtain any outstanding service personnel and service treatment records for the appellant’s period of ACDUTRA from January 1980 to March 1980. 2. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the appellant’s claim, to include SSA disability determinations and any medical records underlying these determinations. If any requested records are not available, the record should be annotated to reflect such and the appellant notified in accordance with 38 C.F.R. § 3.159 (e). 3. Thereafter, the RO or the AMC should afford the appellant a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the appellant’s psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any necessary tests and studies should be accomplished. The examiner must identify all psychiatric disorders present during the period of the claim. The examiner should confirm or rule out a diagnosis of PTSD. Following a review of the relevant records and lay statements, the examiner must provide address the following: (a) Whether there is evidence in the claims-file of action or behavioral changes which indicate that it is at least as likely as not (50 percent or greater probability) that any claimed in-service personal assault occurred. The examiner should offer an opinion in accordance with the guidance set forth in 38 C.F.R. § 3.304 (f)(5). As to the opinions offered by the examiner, the examiner should clearly indicate whether or not the opinions are based on history furnished by the appellant or, rather, on objective contemporaneous evidence in the claims file. In furnishing this answer, the examiner should discuss any indications of performance and disciplinary problems found in the appellant’s service records. (b) With respect to each acquired psychiatric disorder present during the period of the claim, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder originated during his period of ACDUTRA or is otherwise etiologically related his period of ACDUTRA. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed 4. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the appellant’s satisfaction, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.