Citation Nr: 21030874 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-04 877 DATE: May 19, 2021 ORDER Entitlement to service connection for a bilateral eye disability is dismissed. Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for epilepsy is dismissed. REMANDED Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Entitlement to service connection for a bilateral eye disability is dismissed. 2. Entitlement to service connection for bilateral hearing loss is dismissed. 3. Entitlement to service connection for epilepsy is dismissed. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a bilateral eye disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of entitlement to service connection for epilepsy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2007 to February 2008, and from March 2011 to June 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified before a Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Service Connection 1. Entitlement to service connection for a bilateral eye disability 2. Entitlement to service connection for bilateral hearing loss 3. Entitlement to service connection for epilepsy 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. In the present case, the appellant has withdrawn this appeal as to the issues of service connection for a bilateral eye disability, hearing loss, and epilepsy. Hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran's withdrawal of these issues was made at his February 2020 hearing. The Board finds the Veteran's withdrawal of these issues was: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability is remanded. The Veteran seeks service connection for a psychiatric disability, to include PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. In the present case, the Veteran asserts he has a psychiatric disability resulting from in-service stressor events, related both to combat exposure and military sexual trauma, and service connection is therefore warranted. He was afforded an August 2016 VA psychiatric examination which determined the Veteran did not meet the diagnostic criteria for PTSD. The examiner did, however, diagnose "other specified personality disorder" and an "unspecified trauma and stressor-related disorder." The examiner further stated the Veteran's symptoms were, at least in part, related to in-service traumatic events. Additional VA treatment records are negative for a confirmed diagnosis of PTSD, but note multiple PTSD screenings were positive. As a matter of law, VA cannot grant service connection for a personality disorder, or for aggravation of a personality disorder occurring during military service. Morris v. Shinseki, 678 F.3d 1346, 1356 (Fed. Cir. 2012); see also 38 C.F.R. §§ 3.303(c); 3.310(a), 4.127. VA may grant service connection under such conditions only when another mental disorder is "superimposed" upon a personality disorder. Superimposed is not defined in the regulations, but a common definition is that one thing is placed over another, typically so that both are still evident. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Based on the above, the Board finds that an opinion is necessary to determine whether the Veteran's claimed in-service stressors are adequate to support a diagnosis of PTSD and whether his reported symptoms are related to the claimed stressor. It is up to the discretion of the examiner(s) as to whether an examination (either in-person or via telehealth) is necessary. Finally, the Board notes the Veteran has reported ongoing VA treatment. His most recent VA medical records were requested in January 2017, over four years ago. Updated records should be requested. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records related to the Veteran's claim on appeal. 2. Forward the Veteran's claims file to a suitable VA examiner for an opinion regarding the nature and etiology of any current psychiatric disability. The Veteran need not be scheduled for an in-person examination unless such an examination is found to be necessary by the examiner. After examining the entire record, the examiner should provide the following opinions: (a) Based upon the DSM-5 criteria, provide a diagnosis of any psychiatric disability manifested upon evaluation of the record. If no diagnosis is rendered, the examiner must reconcile his/her findings with the diagnoses reflected in the record. (b) For each psychiatric disability identified above, opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability was incurred during or as a result of the Veteran's military service, including any traumatic events reported by the Veteran. (c) The examiner must specifically state whether the Veteran has a diagnosis of PTSD. Regarding a diagnosis of PTSD, provide an opinion as to whether the stressful events reported by the Veteran are related to a fear of hostile military or terrorist activity or, otherwise, to stressors that have been corroborated. In answering the foregoing, the examiner must address the lay and medical evidence of record and provide a clear rationale for each opinion offered. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.