Citation Nr: 22017993 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 19-19 062 DATE: March 27, 2022 ORDER Entitlement to service connection for tinnitus is dismissed. REMANDED Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to service connection for tinnitus on the record during a virtual January 2021 Board hearing. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1981 to March 1984, and from December 1990 to June 1991. He also had active duty training from September 1990 to January 1981. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript of that hearing is associated with the claims file. Entitlement to service connection for tinnitus 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. 38 C.F.R. § 19.55. On January 19, 2021, during his virtual Board hearing, the Veteran withdrew on the record his appeal of the issue of entitlement to service connection for tinnitus. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, as the Veteran has withdrawn his appeal as to the issue of entitlement to service connection for tinnitus, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the appeal of this issue is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disorder and entitlement to service connection for a left foot disorder In May 2017, the Veteran underwent a VA examination to determine the etiology of right and left foot disorder. The May 2017 VA examiner concluded that the bilateral foot disorder was not related to service because the service treatment records contained only one report of foot pain, in 1981, which was "acute and transitory." However, review of the service treatment records reflects that the Veteran reported bilateral foot pain in March 1991 and during his March 1991 separation examination. Additionally, during his January 2021 hearing before the Board, the Veteran reported that he began experiencing foot pain during service, and has continued to experience them continuously since service discharge. As this evidence was not addressed by the May 2017 VA examiner and pertains to the basis of the negative nexus opinion provided by the examiner, a new VA examination addressing the etiology of the Veteran's right and left foot disorders is warranted. 2. Entitlement to service connection for insomnia In April 2017, the Veteran underwent a VA examination to determine the etiology of his insomnia. The April 2017 VA examiner diagnosed unspecified insomnia disorder and opined that the insomnia disorder was not related to the Veteran's active duty service. The examiner explained that the Veteran's in-service adjustment disorder was "time limited," that it "is resolved," and that the Veteran was not seen for treatment of a sleep disorder until November 2016. However, during his January 2021 hearing before the Board, the Veteran testified that he first began experiencing sleep disturbance during active duty service, noting that his duties "really messed with" his sleep cycles. He noted that he could never get back to a correct sleep cycle after returning from Desert Storm. He further explained that he first began experiencing insomnia during service, and that it has continued since that time. The April 2017 VA opinion does not address the Veteran's competent lay statements regarding the onset of his sleep disorder during service, and his statements that the symptoms have continued since service discharge. Accordingly, remand for a new VA examination is warranted. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression The Veteran contends that he has an acquired psychiatric disorder related to his active duty service. During his January 2021 hearing before the Board, he reported an in-service stressor which he believes caused his psychiatric disorder. He noted that during service, he worked at a camp that processed prisoners of war. He recalled one instance in which a man was brought to the camp who was severely burned from head to toe. He explained that he began experiencing symptoms of depression after his service in Southwest Asia, which has been present since that time. In February 2021, the Veteran submitted a private medical opinion which provides diagnoses of PTSD, depression, and anxiety. The February 2021 opinion also contains a nexus relating the Veteran's PTSD to his reported in-service stressor of witnessing a man who was severely burned during active duty service. Establishing service connection for PTSD specifically requires competent evidence showing an in-service stressor, clinical diagnosis of PTSD, and relationship between the two. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Notably, the regulations unequivocally require "credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f). Review of the record shows that the Regional Office (RO) has not yet made any attempts to verify the Veteran's reported stressor. Accordingly, remand is required to assist the Veteran in corroborating his reported in-service stressor event. The matters are REMANDED for the following action: 1. Assist the Veteran in establishing his claimed in-service stressors. Request the Veteran provide additional information regarding his claimed in-service stressor events. The Board notes the U.S. Department of Army, Records Management, and Declassification Agency (RMDA) has realigned its records research activities so that the JSRRC no longer exists. See 86 Fed. Reg. 15413 (March 23, 2021). As such, the RO shall use the new internal process for researching records and then, if unsuccessful, to research the records through the process now available through the RMDA. The RO must attempt to verify the Veteran's PTSD stressors with the RMDA, and any other appropriate facility. Specifically, the Veteran claimed that he witnessed a severely burned man while service at a camp that processed prisoners of war. Multiple requests, if required, should be made to obtain all the information sought. All requests and responses received from each contacted entity should be associated with the claims file. 2. Provide the Veteran with a new VA examination by an appropriate physician to determine the etiology of his right and left foot disorders and his insomnia disorder. To the extent possible, the examiner should be different from the April and May 2017 VA examiners. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's insomnia disorder, right foot disorder, and/or left foot disorder was incurred in or caused by his active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the service treatment records and the Veteran's lay statements and testimony regarding in-service and post-service symptomatology. Specifically, the examiner is asked to address the Veteran's lay statements that he experienced symptoms of the above-noted disorders during active duty service and continuously since service discharge. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.