Citation Nr: 21024010 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-55 262 DATE: April 21, 2021 ORDER Entitlement to service connection for right leg radiculopathy is dismissed. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT During his April 2021 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to service connection for right leg radiculopathy with full understanding of the consequences of such action. CONCLUSION OF LAW The criteria for dismissal of entitlement to service connection for right leg radiculopathy by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to March 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2013 rating decision, the RO previously denied a claim of service connection for depression and anxiety. Because the Veteran has a new diagnosis of PTSD based on a distinct factual basis, the issue on appeal is considered a new claim of service connection for PTSD. See Boggs v. Peake, 520 F.3d 1330 (2008); Ephraim v. Brown, 82 F.3d 399 (Fed.Cir.1996) (holding that “a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same claim when it has not been previously considered”). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Entitlement to service connection for right leg radiculopathy is dismissed. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The withdrawal of an appeal must be either in writing or on the record at a hearing. Id. During his April 2021 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to service connection for right leg radiculopathy with full understanding of the consequences of such action. The Board notes that service connection for such disability was granted in an April 2017 rating decision and that there thus remains no issue in case or controversy. See generally Cardona v. Shinseki, 26 Vet. App. 472, 474 (2014) (stating that when there is no current case or controversy, the Board lacks jurisdiction to adjudicate the claim and it must be dismissed). Accordingly, as the Board has no further jurisdiction to review an appeal on this matter, it is dismissed. REASONS FOR REMAND Entitlement to service connection for PTSD is remanded. The Board finds that additional development is needed to adjudicate the Veteran’s claim of entitlement to service connection for PTSD. Private treatment records in August 2009 and May 2013 show a diagnosis of PTSD. During those treatments, however, the Veteran did not relate any of his psychiatric symptoms to his military service; instead, he related those symptoms to post-service workplace incidents. During VA treatment in May 2013, the Veteran reported being depressed since he was hurt in Korea and that he drank to forget and block out memories of that time. During June 2013 VA treatment, he stated that his PTSD may be related to a separate incident in service when his captain held a gun briefly under his chin after the Veteran fell asleep behind the wheel of the car he was driving. In July 2013, the Veteran reported that he first began experiencing symptoms of depression, irritability, paranoia, and auditory hallucinations following the incident with his Captain and following the back injury during service. In his November 2014 statement in support of claim, the Veteran reported that he was moving a round off of a helicopter when the person helping him slipped. He fell and hurt his back, but was also very scared that the helicopter propellers would hit him due to the helicopter’s hard landing. This incident has caused nightmares and flashbacks ever since; he started drinking heavily following this incident and continued to self-medicate for 10 to 15 years before seeking professional help. During his April 2021 Board hearing, the Veteran also testified that the pain from his service-connected back disability tends to worsen his psychiatric symptoms. Because service connection has been granted for a back disability based on the same set of facts reported as the basis for his PTSD, that claimed stressor is conceded. The Veteran has not yet been given a VA examination for his psychiatric disability. The Board thus finds that a remand is necessary to obtain a medical opinion as to whether the Veteran has a diagnosis of PTSD that is a result of his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. Obtain copies of VA treatment records from October 2018 to the present. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the above development is completed, arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any psychiatric disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period (from November 2014). Specifically, does the Veteran have a diagnosis of PTSD under DSM-V criteria? If not, please identify the criteria for such diagnosis that are not met and reconcile that conclusion with the diagnosis of PTSD noted in private treatment records. (b) If PTSD is diagnosed, the examiner should render an opinion as to whether the Veteran’s PTSD is related to a stressor event in service. The Board reminds the examiner that the Veteran’s PTSD stressor related to the helicopter incident has been established based on the grant of service connection for a back disability that was based on the same incident in service; the stressor related to the incident involving his captain has not been established. (c) For each psychiatric disability diagnosed other than PTSD, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, to specifically include the established stressor? All pertinent diagnoses of record must be addressed. (d) If the examiner determines that the Veteran’s psychiatric disabilities are not related to his service, then the examiner should opine as to whether it is at least as likely as not (50% or greater probability) that such disability was either caused or aggravated by the Veteran’s service-connected back disability. The examiner is reminded that the Veteran testified that the pain from his service-connected back disability worsens his psychiatric symptoms. The examiner’s attention is also directed to a July 2013 VA initial mental health evaluation wherein the Veteran reported first experiencing symptoms of depression, irritability, paranoia, and auditory hallucinations following two incidents in the military, including the incident surrounding his service-connected back disability. The opinion must address whether the psychiatric disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.