Citation Nr: 23013003 Decision Date: 03/02/23 Archive Date: 03/02/23 DOCKET NO. 18-55 217A DATE: March 2, 2023 ORDER Entitlement to service connection for a right hand disability is dismissed. REMANDED Entitlement to service connection for the residuals of a head injury is remanded. FINDING OF FACT During his April 2022 hearing, prior to the promulgation of a Board decision, the Veteran withdrew his appeal as to his claim for entitlement to service connection for a right hand disability. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to service connection for a right hand disability have been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to November 1978 and from December 1979 to February 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2022, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The undersigned agreed to keep the record open for 30 days to allow the Veteran additional time to submit nexus evidence to support his claim. See April 2022 Hearing Transcript, pages 2, 14. The Board notes that the 30 day period has elapsed, and no such evidence has been received. 1. Entitlement to service connection for a right hand disability is dismissed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision or may be withdrawn on the record at a hearing. Withdrawal may be made by the Veteran or his authorized representative. 38 C.F.R. §§ 19.55. In this case, during the April 2022 Board hearing, the Veteran stated that he wished to withdraw his claim for entitlement to service connection for a right hand disability. See April 2022 Hearing Transcript, page 2. As the Veteran has withdrawn his right to appeal in accordance with 38 C.F.R. § 19.55, the Board no longer has appellate jurisdiction over that issue and can take no further action on the matter. REASONS FOR REMAND 2. Entitlement to service connection for residuals of a head injury is remanded. During his April 2022 Board hearing, the Veteran testified that he sustained a head injury while he was serving on active duty in or around 1977 or 1978 and explained that he has continued to experience residual symptoms, to include headaches, memory loss, cognitive impairment, and ringing ears, since that time. Specifically, he reported that a 45 lb hoist chain hit his right temple and knocked him unconscious while he and another individual were cleaning a vehicle. He further stated that he was treated at an Army hospital in or near Badenhausen, Germany after the injury and subsequently received treatment at Brooke Army Hospital after he returned to the United States. See April 2022 Hearing Transcript, pages 3-13; see also October 2018 Correspondence. A review of the Veteran's service personnel records (SPRs) shows that the Veteran was stationed in Germany from May 1976 to May 1978 and that he was a patient at Brooke Army Medical Center in the STU/MHC from July 1978 to September 1978. See December 2015 Military Personnel Record. The Veteran was separated from service in December 1980 under the provisions of Chapter 9 on the basis of alcohol and other drug abuse. A review of the post-service treatment records confirms that the Veteran has been diagnosed with postconcussion syndrome, mild traumatic brain injury, migraine with aura, and mild cognitive disorder. See November 2018 CAPRI. In March 2018, the Veteran underwent a magnetic resonance imaging (MRI) study, which revealed "some brain abnormality." To this end, the examiner indicated that it was very hard to determine if the abnormality was from a brain injury the Veteran reportedly sustained in Germany, but subsequently commented that it most likely was caused by the in-service injury. See November 2018 CAPRI. In support of his claim, the Veteran submitted a private medical opinion from Dr. Alan dated in November 2018. Dr. Alan indicated that he had been involved in the Veteran's care for symptoms arising from a head injury he sustained in the 1970s. To this end, the private physician noted that the Veteran reported that he was hit in the head with a blunt object and loss consciousness in the 1970s and explained that he had been experiencing symptoms, to include headaches, ringing ears, shaking, tremulousness, and difficulty talking, since his initial injury. See December 2018 Medical Treatment Record Non-Government Facility. The Board finds that a remand is necessary to attempt to verify the Veteran's reported in-service head injury. The Veteran reported that he initially received treatment for his claimed in-service head injury at an Army hospital in or near Badenhausen, Germany and that he was subsequently admitted to Brooke Army Hospital in Texas after he returned to the United States. See April 2022 Hearing Transcript, pages 5, 9-12. In addition, as noted above, the Veteran's SPRs confirm that he was a patient at Brooke Army Medical Center from July 1978 to September 1978. See December 2015 Military Personnel Record. However, no treatment records from an Army Hospital in or near Badenhausen, Germany or from Brooke Army Medical Center have been associated with the claims file and that no unavailable records response has been received. As such, the Board finds that a remand is required to obtain these records. In addition, during the April 2022 Board hearing, the Veteran testified that he began receiving treatment for residuals of his reported in-service head injury approximately 23 years prior to the date of the hearing, in or around 1999. See April 2022 Hearing Transcript, page 13. In addition, post-service treatment records indicate that the Veteran has received treatment for head injury residuals from private providers, to include Dr. Shah and Dr. Alan. See November 2018 CAPRI; December 2018 Medical Treatment Record Non-Government Facility. However, no private treatment records dated in or around 1999 have been associated with the claims file, and with the exception of private Disability Benefits Questionnaires (DBQs) for posttraumatic stress disorder (PTSD) and headaches from Dr. Shah dated in November 2016 and Dr. Alan's November 2018 medical opinion, no private treatment records from either provider have been associated with the claims file. Thus, the Board finds that a remand is also required to obtain these records. Lastly, the Board notes that the Veteran reported that he has been receiving treatment for his claimed head injury residuals through VA since 2015 during the April 2022 Board hearing. See April 2022 Hearing Transcript, pages 8. 14. However, the most recent VA treatment records currently associated with the Veteran's claims file are dated in November 2018, and no unavailable records response has been received. See November 2018 CAPRI. As such, the Board finds that a remand is also needed to obtain all VA treatment records dated from November 2018 to the present. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records from Army hospitals in or near Badenhausen, Germany dated from May 1976 to May 1978 and all treatment records from Brooke Army Medical Center dated from July 1978 to September 1978. In particular, records from the STU/MHC, which the Board believes is the Special Treatment Unit/Mental Health Clinic at Brooke Army Medical Center should be requested. All efforts to obtain these records should be documented. If any treatment records are unavailable, issue a formal finding of unavailability and notify the Veteran so that he can submit any medical records in his possession. 2. Obtain all VA treatment records pertaining to the claim dated from November 2018 to the present. If any treatment records are unavailable, issue a formal finding of unavailability and notify the Veteran so that he can submit any medical records in his possession. (Continued on the next page) 3. With any necessary identification of sources by the Veteran, request all private treatment records from the Veteran not already associated with the file, to include all relevant treatment records dated from approximately 1999 to the present and any outstanding treatment records from Dr. Syed A. Shah and Dr. Fakher Alan. 4. If the in-service head injury is confirmed following the above development, obtain a VA examination and opinion. The examiner is asked to opine as to whether it is at least as likely as not that such in-service head injury is related to any current diagnosed disability. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.