Citation Nr: 22014574 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-10 807 DATE: March 14, 2022 ORDER Entitlement to service connection for left elbow disability has been withdrawn. Entitlement to service connection for right wrist disability has been withdrawn. REMANDED Entitlement to service connection for psychiatric disability, including depressive disorder and anxiety disorder, is remanded. FINDINGS OF FACT 1. On June 9, 2021, during the Board hearing and prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claim for service connection for left elbow disability. 2. On June 9, 2021, during the Board hearing and prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claim for service connection for right wrist disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appeal of the claim for service connection for left elbow disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the Veteran's appeal of the claim for service connection for right wrist disability 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 August 1978 to September 1978 and from March 1991 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision denying service connection for left elbow, right wrist, and psychiatric disabilities. In June 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for left elbow disability has been withdrawn. 2. Entitlement to service connection for right wrist disability has been withdrawn. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. 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. In DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011), the Court held a valid oral withdrawal must be: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. During the June 2021 Board hearing, the Veteran withdrew from appeal the issues of entitlement to service connection for left elbow and right wrist disabilities. The Veteran stated that he wanted to withdraw the issues and confirmed he understood the consequences of the withdrawal. The Veteran confirmed that he understood that the claims would be dismissed without the Board deciding the claims and that he would have to file new claims with new and relevant evidence if he wished to pursue them again in the future. See June 2021 Board Tr., p. 3. The Board finds the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Thus, the Board finds the Veteran's withdrawal of these issues at the hearing meets the requirements of Delisio. These issues are therefore dismissed because no allegation of error of fact or law remains for appellate consideration. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to service connection for psychiatric disability, including depressive disorder and anxiety disorder, is remanded. The Veteran seeks service connection for psychiatric disability, asserting that his psychiatric disability began in service or is related to in-service events. The Veteran reports that his psychiatric symptoms, including depression, began during service and continued after service. See June 2021 Board Hearing Tr., p. 16. The Veteran's service records show that he reported "sometimes" when asked if he had repeated or prolonged depression during service in September 1993. He reports that he was depressed and attempted suicide during service in March 1995 and then was AWOL for two nights following before calling his sergeant. The Veteran's service records show that he was AWOL for two nights in March 1995. In a June 1995 service personnel record, the Veteran reported that he was not in a stable state of mind during his two nights of AWOL. The Veteran's depression was noted by the medical examiner upon separation in June 1995. The Veteran was initially discharged under dishonorable conditions. However, the Veteran's service discharge status was upgraded to honorable after he explained that he was suffering from mental health problems during service which he did not recognize at the time and had attempted suicide before hiding for two days. As reflected in January 1997 VA emergency room treatment records, a year and a half after service, the Veteran was diagnosed with recurrent major depression and anti-social traits. The Veteran reported that he had had depressive symptoms for awhile which had increased with separation from his wife. In a March 1997 statement, the Veteran reported that he did not seek treatment after service until January 1997 because he had been in denial of his mental health problems since leaving service and that he eventually sought treatment due to his wife. A July 2016 VA examiner diagnosed the Veteran with personality disorder, major depressive disorder, and unspecified anxiety disorder. The Board notes that service connection generally cannot be granted for a personality disorder but may be granted for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder) by superimposed disease or injury. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.127. Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, the Veteran's other diagnosed psychiatric disorders of depression and anxiety may provide a basis for service connection. The July 2016 examiner opined that the Veteran's personality disorder, major depressive disorder, and unspecified anxiety disorder are less likely as not incurred in or caused by service. However, the examiner relied on the lack of treatment, diagnosis, or hospitalization for a clinically significant mental health condition during service without adequately addressing the Veteran's reports that his depressive symptoms began during service. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address the Veteran's lay evidence, and the Board does not find the Veteran not credible or not competent to offer that lay evidence, a new exam is needed). The examiner also did not have the opportunity to consider the Veteran's later hearing testimony regarding the continuity of his depressive symptoms after service and the Veteran's reports that he had anger and relationship problems with other service members during service. See June 2021 Board Hearing Tr., pp. 12, 16, 18. The examiner explained the Veteran has a history of suicidal and homicidal ideation secondary to relationship conflict but did not address the Veteran's assertions that in-service events caused his depression. In treatment records, the Veteran reported sexual harassment and assault during service, an incident where his friend was injured during a training exercise, and racial/ethnic/linguistic discrimination. See, e.g., January 2013 VA Treatment Record. During the June 2021 Board hearing, the Veteran reported depression from his in-service responsibilities such as gathering belongings and speaking with family members for soldiers who passed away. See June 2021 Board Hearing Tr., p. 12. The examiner opined that the Veteran's depressive disorder and anxiety disorder are secondary to the personality disorder but still diagnosed depressive disorder and anxiety disorder under the DSM-5 and assigned symptomatology to those diagnoses. The examiner did not adequately address whether the Veteran's depressive disorder and anxiety disorder were superimposed upon his personality disorder during service or are separate from his personality disorder and related to service. For these reasons, remand is warranted to obtain additional VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). In addition, the Veteran reported hospital psychiatric treatment following the March 1995 in-service incident at Fort Huachuca. While this matter is on remand, the Regional Office should take any additional actions deemed warranted to obtain any psychiatric treatment records at Fort Huachuca following the March 1995 in-service incident until discharge in June 1995. Any additional treatment records should be obtained on remand, including VA treatment from June 2021 to the present and all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. Take any additional actions deemed warranted to obtain any psychiatric treatment records for the Veteran at Fort Huachuca following the March 1995 in-service incident until discharge in June 1995. 2. Obtain any additional VA treatment records, to include VA treatment records from June 2021 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran's claims file. 3. After outstanding records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any acquired psychiatric disorders the Veteran has presented during the claim period even if resolved, including major depressive disorder, and unspecified anxiety disorder. For each disability other than a personality disorder, the examiner should opine as to whether the disorder at least as likely as not: (a) had an onset in service; (b) was superimposed upon a personality disorder during service; or (c) is otherwise related to an in-service injury, event, or disease. For any psychosis, the examiner should opine as to whether the disorder at least as likely as not manifested to a compensable degree within one year of separation from service (i.e., by June 1996). The examiner should consider all medical and lay evidence of record. The examiner should specifically address the Veteran's reports that his depressive symptoms began during service and have continued; the Veteran's report that he had anger and relationship problems with other service members during service; the Veteran's report that voices in his head started in service in 1995; the September 1993 STR noting the Veteran's report of "sometimes" when asked if he had repeated or prolonged depression; the Veteran's report that he was depressed and attempted suicide during service in March 1995 and then was AWOL for two nights following before calling his sergeant; the June 1995 service personnel record in which the Veteran reported that he was not in a stable state of mind during his two nights of AWOL; the June 1995 separation examination noting depression; the January 1997 VA emergency room treatment noting the Veteran's report that he had had depressive symptoms for awhile which had increased with separation from his wife; and the Veteran's March 1997 report that he waited until January 1997 to seek treatment after service because he was in denial of his mental health problems. The examiner should also specifically address the Veteran's reports of in-service events, including responsibilities such as gathering belongings and speaking with family members for soldiers who passed away, racial/ethnic/linguistic discrimination, sexual harassment and assault during service, and an incident where his friend was injured during a training exercise. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell, 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.