Citation Nr: 22019963 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-61 289 DATE: April 3, 2022 ORDER As the claim is withdrawn, the issue of entitlement to service connection for a headache disability is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT On June 16, 2021, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, notified the Board at his hearing, that he sought to withdraw his claim for entitlement to service connection for a headache disability. CONCLUSION OF LAW The criteria for withdrawal by the Veteran (or his authorized representative) of the claim for entitlement to service connection for a headache disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Army from March 1995 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. It is noted that at the hearing, the VLJ granted the Veteran an additional 60 days to submit supporting evidence, including medical evidence and information regarding the Veteran's alleged stressor in support of his PTSD claim. However, on August 16, 2021, he requested an additional two to three weeks to submit supporting evidence. In a letter dated October 19, 2021, the Board notified the Veteran that he had been granted a 30-day extension to submit additional evidence in support of his claim. On January 5, 2022, the Veteran requested another extension. Subsequently, in a letter dated February 8, 2022, the Board notified the Veteran that it was granting a final 30-day extension to submit supporting evidence. The notification letter further reminded the Veteran that the appeal had initially been held open for an additional 60 days following the June 2021 Board hearing; an October 2021 ruling letter already had granted a 30-day extension, and; the February 8, 2022 ruling letter was the final extension of time that would be granted in this appeal. Significantly, VA received no additional evidence from the Veteran or his representative, including details regarding an in-service stressor to support his PTSD claim. Entitlement to service connection for a headache disability 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. A written withdrawal must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if other than the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. 38 C.F.R. § 19.55(b)(1). If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In the present case, the Veteran, through his representative, notified the undersigned VLJ, at his June 16, 2021 Board hearing, that he sought to withdraw his appeal for the claim of entitlement to service connection for headaches. See Hearing Transcript at 2-3 (June 2021). This request was clear, unambiguous and made with full understanding of the consequences and in consultation with his representative. See DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 38 C.F.R. § 19.55. The record also reflects that the Veteran submitted a written statement, dated June 16, 2021, the same day as the Board hearing, memorializing the request to withdraw his appeal with respect to the issue of entitlement to service connection for headaches. See VA 21-4138 Statement in Support of Claim (June 16, 2021). See also, Hembree v. Wilkie, 33 Vet. App. 1 (2020) (holding that a withdrawal that fully complies with the requirements of the regulation is effective when received). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, is remanded. The Veteran contends that he has a psychiatric disorder, to include PTSD, related to his service. The Veteran testified that he heard gunfire while he was running down a ravine doing PT at Fort Bragg which he later learned was a fellow soldier opening fire on his platoon. See Hearing Transcript at 7 (June 2021). Alternatively, at the Board hearing, the Veteran's representative raised the theory of entitlement to service connection on a secondary basis, asserting the Veteran's depression, diagnosed several years ago, is due to his service-connected disabilities. See Hearing Transcript at 4, 15 (June 2021). To ensure that VA has met its duty to assist, remand is required. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, remand is required to obtain the Veteran's complete military personnel records. While a response from the Defense Personnel Records Information Retrieval System (DPRIS) contains some military personnel records, it appears they are incomplete. See DPRIS (September 2017). At his hearing, the Veteran testified that while he was not treated for any psychiatric complaints during service, he received a few Article 15s for disciplinary action. See Hearing Transcript at 8, 11 (June 2021). However, the Board notes that the available military personnel records do not contain any documents related to any disciplinary actions and only contain a record of the Veteran's assignments from March 1995 to August 1995. Lastly, while the Veteran's service treatment records (STRs) appear to be complete and reflect no complaints, treatment, diagnoses, or findings related to mental health problems during active service, there is no separation examination of record. As the available military personnel records contain a copy of the Veteran's December 1994 enlistment examination, the Board notes that any outstanding military personnel records may also contain a copy of the Veteran's separation examination, if any. Given the above, remand is necessary for the agency of original jurisdiction (AOJ) to attempt to obtain the Veteran's complete military personnel records related to his active duty service or to confirm that no additional records exist. Second, the available military personnel records contain orders showing that the Veteran was discharged from active duty in July 1999 and, ordered to the US Army Reserve CRTLGP (REINF) ARPERCEN in St. Louis, MO, with a terminal date of Reserve obligation to end on December 22, 2002. In addition, an order dated December 31, 2002, issued by U.S. Army Reserve Personnel Command, shows that on that date, the Veteran was discharged from USAR Control Group (REINF). See DPRIS Response (September 2017). As the claims file does not contain any medical treatment records and military personnel records related to the Veteran's Army Reserve service, remand is required for the AOJ to request them or to confirm that no records related to that period of service exist. Third, remand is necessary to obtain reasonably identified VA treatment records. The Veteran testified that he has sought treatment through VA since approximately 2012 for his mental health issues and continued to seek treatment, having most recently been seen in May 2021. He also testified that he intended to pursue mental health treatment through a private provider. See Hearing Transcript at 4-6 (June 2021). Indeed, a VA treatment record, dated in April 2005, reflects the Veteran had negative screens for PTSD and depression. Moreover, the most recent VA treatment record associated with the claims file is dated in September 2015 and shows diagnoses of depressive disorder, NOS and methamphetamine dependence. Thus, remand is required to obtain outstanding VA treatment records and afford the Veteran an opportunity to authorize release to VA of any relevant non-VA records. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for non-VA medical providers seen for signs and symptoms related to his psychiatric disorder. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period prior to October 2013 and for the period from September 2015 to the Present. 3. Verify the dates of the Veteran's service in the U.S. Army Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). 4. Obtain the Veteran's complete military personnel records from his period of active duty service and his complete service treatment records and military personnel records pertaining to his service in the U.S. Army Reserve. Requests for records should be made to all potential repositories. Document all requests for information as well as all responses in the claims file. 5. Conduct any other development deemed necessary and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.