Citation Nr: 1415956 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 12-13 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD), anxiety, panic disorder, agoraphobia, insomnia, and depression, including a rating therefor in excess of 30 percent prior to July 2, 2012; in excess of 50 percent prior to July 17, 2013; and in excess of 70 percent on and after July 17, 2013. 2. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia with four implanted screws and leg plate from October 1, 2009. 3. Entitlement to an initial compensable rating for left knee chondromalacia from October 1, 2009. 4. Entitlement to an initial compensable rating for hypertension from October 1, 2009. 5. Entitlement to an initial compensable rating for migraines from October 1, 2009. 6. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to September 2009, to include service in the Southwest Asia Theatre of Operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in November 2009 and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, granting service connection for psychiatric disability, right and left knee chondromalacia, hypertension, and migraines, and assigning initial evaluations therefor. By subsequent rating action in October 2013, the RO modified the initial ratings assigned for the Veteran's psychiatric disorder, with an increased in the previously assigned 30 percent rating to 50 percent, effective from July 2, 2012, and to 70 percent, effective from July 17, 2013. In his substantive appeal of May 2012, the Veteran requested a videoconference hearing before the Board. That proceeding was scheduled to occur in March 2014, but prior to its occurrence, the Veteran withdrew that hearing request by his written statement received by the Board in March 2014. No other request for a hearing remains pending. Additional VA clinical records were made a part of the Veteran's virtual claims folder in April 2014, albeit without initial RO consideration or a waiver therefor. In view of the Veteran's withdrawal of each of the developed appellate issues, however, no need for remand to ensure RO consideration of that evidence exists. The issue of the Veteran's TDIU entitlement is one that is part and parcel of his claims for initial ratings, which include his statement made during the course of the instant appeal that he is unable to work due to service-connected disabilities and has not worked during postservice years. See Rice v. Shinseki, 22 Vet. App. 447 (2009). No development or adjudication of that issue is shown to date. That issue is further addressed in the REMAND portion of this document below and is REMANDED to the RO via the VA's Adjudication Management Center (AMC) in Washington, DC. FINDING OF FACT By his written statement received by the Board in March 2014, the Veteran withdrew from appellate consideration the issues of his entitlement to initial ratings for PTSD, anxiety, panic disorder, agoraphobia, insomnia, and depression, as well as right and left knee disorders, hypertension, and migraines. CONCLUSION OF LAW The criteria for withdrawal of the issues on appeal involving claims for initial ratings for PTSD, anxiety, panic disorder, agoraphobia, insomnia, depression, right and left knee disorders, hypertension, and migraines have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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.A. § 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran through his written statement received by the Board in March 2014 withdrew from appellate consideration the issues of his entitlement to initial ratings for PTSD, anxiety, panic disorder, agoraphobia, insomnia, and depression, right and left knee disorders, hypertension, and migraines. As there remain no allegations of error of fact or law for appellate consideration as to those matters, the Board does not have jurisdiction to review the appeal relating thereto and that portion of the appeal must therefore be dismissed. ORDER That portion of the appeal involving claims for initial ratings for PTSD, anxiety, panic disorder, agoraphobia, insomnia, and depression, as well as right and left knee disorders, hypertension, and migraines, is dismissed. REMAND As indicated above, the Veteran has advanced a claim for a TDIU as part of his claims for initial ratings for various disabilities, and although he has withdrawn his appeal involving those initial ratings, he has specifically excluded from that withdrawal his claim for TDIU entitlement. No development or adjudication of that issue is shown by the evidence currently contained in his VA claims folder, be it his actual or virtual claims file. Remand to permit the AMC or RO to undertake those necessary actions is required. Accordingly, this portion of the case is REMANDED for the following actions: 1. Ensure full compliance with the VA's duties to notify and assist as to the issue of the Veteran's entitlement to a TDIU. 2. Obtain for inclusion in the Veteran's actual or virtual VA claims folder any pertinent VA treatment records not already on file. 3. Initially adjudicate the issue of the Veteran's entitlement to a TDIU for the entirety of the period from the day following his discharge from service until the present. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case, specifically outlining the evidence considered, including the VA treatment records added to his virtual VA folder in April 2014, and the dispositive legal authority, following which he should be furnished a reasonable period of time in which to respond, before the case is returned to the Board for additional consideration. No action by the Veteran is required until he receives further notice. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs