Citation Nr: 21028136 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-32 571 DATE: May 10, 2021 ORDER The issue of entitlement to service connection for bilateral pes planus is dismissed. The issue of entitlement to service connection for bilateral hearing loss is dismissed. The issue of entitlement to service connection for bilateral tinnitus is dismissed. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, posttraumatic stress disorder (PTSD), as a result of military sexual trauma (MST), is remanded. The issue of entitlement to service connection for left shoulder condition is remanded. The issue of entitlement to service connection for right shoulder condition is remanded. The issue of entitlement to service connection for back condition is remanded. The issue of entitlement to service connection for neck condition is remanded. The issue of entitlement to service connection for a jaw condition, claimed as temporomandibular joint (TMJ) condition, is remanded. FINDING OF FACT In a May 2019 correspondence, the Veteran, through her representative, requested to withdraw the claims of entitlement to service connection for bilateral pes planus, bilateral tinnitus, and bilateral tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the issues of entitlement to service connection for bilateral pes planus, bilateral hearing loss, and bilateral tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1984 to March 1985. The Veteran also had subsequent service in the Army Reserves. This appeal arose from March 2015 and September 2017 rating decisions. Originally, the Veteran requested a hearing before the Board. In January 2020, the Veteran, through her representative, withdrew the hearing request. See January 2020 Third Party Correspondence. Withdrawal of Claim 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. Except for appeals withdrawn on the record at the time of a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.205. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Id. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In May 2019, the Veteran, through her representative, requested to withdraw the claims of entitlement to service connection for bilateral hearing loss, bilateral tinnitus, and bilateral pes planus. See May 2019 Third Party Correspondence. Accordingly, the Board does not have jurisdiction to review these issues, and the issues are dismissed. REASONS FOR REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's remaining claims of entitlement to service connection. 1. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD as a result of MST, is remanded. The Veteran asserts that she developed PTSD due to events in service related to military sexual trauma. The medical records show that the Veteran is receiving treatment for her mental health. The VA medical records indicate DSM-5 diagnoses of PTSD and other psychiatric disorders, to include major depressive disorder. The Veteran has reported experiencing events involving sexual trauma during her time in service. She describes events occurring both in 1985 and 1986. She also asserted trying to get help for her drinking while in the military. With respect personal assault as a stressor, VA recognizes that, because such assault is a personal and sensitive issue, many incidents are not officially reported, which in turn creates a proof problem in establishing that they did. It is not unusual for there to be an absence of service records documenting the events alleged by a veteran. Therefore, evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. 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. VA may submit any evidence received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. In a December 1986 letter, a physician stated that the Veteran was being treated by him and was under a lot of tension due to harassment in her work in the 49th medical unit. The physician advised that she be released from the Army. The Board also acknowledges that the Veteran was notified multiple times regarding unexcused absences from unit training assemblies in 1986. In February 1987, the Veteran was officially declared an unsatisfactory participant after nine unexcused absences and was instructed she would be transferred to the Individual Ready Reserve (IRR) for the balance of her service obligation. See February 2015 Military Personnel Record. The available service records show that the Veteran served on active duty status from December 1984 to March 1985. The records indicate that the Veteran had subsequent reserve service. The Veteran's status, whether she was ACDUTRA or INACDUTRA for service periods after March 1985, has not been specified. When a claim for service connection is based on a period of ACDUTRA, there must be evidence that the individual became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Regarding INACDUTRA, there must be evidence that the individual became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and an Appellant would not qualify as a "Veteran" by virtue of ACDUTRA alone. Id. A review of the record does not show that the AOJ made the efforts to clarify the Veteran's status during her reserve periods or attempt to obtain any medical records from that period. On remand, the AOJ is directed to undertake all appropriate development to obtain all service treatment and personnel records from the Reserve periods and verify the characterization of the Veteran's duty status during those periods. After that development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of her psychiatric disorder. 2. The issues of entitlement to service connection for a bilateral shoulder condition, a back condition, a neck condition, and a jaw condition are remanded. The Veteran is seeking entitlement to service connection for bilateral shoulder, neck, back, and jaw conditions. The medical evidence of the record document complaints and treatment for these conditions. The available service treatment records, from the Veteran's active duty period, are absent any complaints, diagnosis, or treatment of these conditions. However, the Board is remanding to obtain records from her service period in the Reserves after March 1985. Those records may be pertinent to the Veteran's conditions. To afford the Veteran full consideration of her claims, which includes having a complete record, these issues will be remanded as well. The matters are REMANDED for the following action: 1. Make the necessary efforts to determine the Veteran's characterization of the Veteran's service periods in the Army Reserves after March 1985 and obtain any missing military treatment or personnel records associated with the Veteran's periods in the Army Reserves after March 1985. All appropriate sources, such as National Personnel Records Center (NPRC), the Department of the Army, and/or the Veteran's Army Reserve unit, should be contacted. The scope of the search must be noted in the record. If any treatment or personnel records cannot be obtained after necessary efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The AOJ must provide the Veteran and her attorney with proper notice that meets the requirement under 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e), including (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, and (c) a description of any further action to be taken by VA with respect to the claim. The Veteran and her attorney must then be given an opportunity to respond. 2. After the development above has been completed, and all available, relevant medical records have been received, and associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of her psychiatric disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Provide diagnoses for any acquired psychiatric disorders found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b) If a diagnosis of PTSD is appropriate, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis. The examiner should state if: (1) each claimed stressor was sufficient to produce PTSD. (2) the diagnostic criteria for diagnosis of PTSD has been satisfied. Please specify each criterion that supports a PTSD diagnosis. (3) there is a link between the current symptomatology and one or more of the in-service stressors sufficient to produce PTSD. The examiner must opine whether the evidence of record, including the Veteran's lay statements and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. (c) With respect to each acquired psychiatric disorder, other than PTSD found to be present and/or diagnosed proximate to or during the pendency of the appeal, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder was incurred in, caused by, or is otherwise related to, the Veteran's active military service. Solely relying on the lack of in-service medical documentation is not sufficient in this matter. The examiner is asked to consider and discuss the likelihood that the Veteran's psychiatric disorder is related to her service, given the particulars of this Veteran's medical history, family history, and the absence or presence of other risk factors, etc. 4. After the development requested above has been completed to the extent possible, to include obtaining VA examinations if deemed warranted by the AOJ for the Veteran's physical disabilities (shoulders, back, neck, and jaw), the case should again be reviewed by the AOJ on the basis of all of the evidence on the record. If any benefit sought remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case (SSOC). The Veteran and her representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. Erin Trojanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.