Citation Nr: 1509086	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  12-01 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for malunion of the mandible.

2. Entitlement to service connection for temporal mandibular joint syndrome (TMJ).

3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).

4. Entitlement to service connection for an acquired psychiatric disability, to include depression.

5. Entitlement to service connection for left ankle disability.

6. Entitlement to service connection for service connection for erectile dysfunction.

7. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a left knee disability, and if so, whether service connection is warranted.


8. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a left foot numbness disability, and if so, whether service connection is warranted.

9. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a low back disability, and if so, whether service connection is warranted.

10. Entitlement to total disability due to unemployability (TDIU).

11. Entitlement to an increased rating for a right knee disability.

12. Whether the reduction of the right knee disability rating from 20 to 10 percent was proper.

13. Entitlement to service connection for sleep apnea, to include as secondary to PTSD.


REPRESENTATION

Appellant represented by:	Donald L. Donati, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel

INTRODUCTION

The Veteran had active military service from July 1979 to December 1979 and from June 1980 to July 1984.

This appeal comes to the Board of Veterans' Appeals (Board) from a March 2010, April 2011, June 2012, and December 2013 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The issues of entitlement to service connection for sleep apnea, a left ankle disability, erectile dysfunction, and an acquired psychiatric disability, to include depression and PTSD; whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a left foot numbness disability, left knee disability, and back disability, and if so, whether service connection is warranted; entitlement to an increased rating for a right knee disability; entitlement to total disability due to unemployability; and whether the reduction of the right knee disability rating from 20 to 10 percent was proper are being remanded, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

In a December 2014 letter to the Board, received prior to the promulgation of a decision in this appeal, the Veteran expressly stated that he wished to withdraw the issues of service connection for TMJ and malunion of the mandible.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal of the claims for entitlement to service connection for TMJ and malunion of the mandible have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5)  (West 2014); 38 C.F.R. § 20.204  (2014). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.

In the present case, in a December 2014 letter to the Board the Veteran expressly stated that he wished to withdraw the issues of entitlement to service connection for TMJ and malunion of the mandible.

Because the Veteran has clearly expressed his desire to terminate his appeal as to those issues, because he has done so in writing, and because the Board had not yet promulgated a decision on his appeal at the time of his request for withdrawal, the legal requirements for a proper withdrawal have been satisfied.  38 C.F.R. § 20.204(b).  Accordingly, further action by the Board on the issues of entitlement to service connection for TMJ and malunion of the mandible is not appropriate and the Veteran's appeal as to those matters should be dismissed.  38 U.S.C.A. § 7105(d).


ORDER
.
The Veteran's appeal of  his claim for service connection for malunion of the mandible is dismissed.

The Veteran's appeal of his claim for service connection for TMJ is dismissed.


REMAND

A remand is required in this case to ensure that there is a complete record upon which to decide the issues of entitlement to service connection for a left ankle disability, erectile dysfunction, and an acquired psychiatric disability, to include depression and PTSD; whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a left foot numbness disability, left knee disability, and back disability, and if so, whether service connection is warranted; entitlement to an increased rating for a right knee disability; whether the reduction of the right knee disability rating from 20 to 10 percent was proper and whether an increased rating is warranted; and the intertwined issue of entitlement to TDIU, so that the Veteran is afforded every possible consideration.  

Social Security Records

In October 2013, the Veteran submitted a copy of his partially favorable Social Security Administration decision.  However, the underlying medical records connected with the decision have not been associated with the Veteran's claims file.

When VA is put on notice of the existence of potentially relevant Social Security Administration (SSA) records, VA must try and obtain these records before deciding the appeal as part of the duty to assist.  See 38 C.F.R. § 3.159(c)(2) and (3) (2012); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370- 372 (1992).  The Veteran's SSA records are not associated with the claims file and must be obtained on remand as they may be relevant to the claim on appeal.  Therefore, the RO/AMC must contact the SSA to obtain a complete copy of any and all adjudications and the records underlying any adjudication for disability benefits.  

Statement of the Case

With respect to the claim for entitlement to service connection for sleep apnea, the Board finds that remand is required for the AOJ to issue a statement of the case (SOC).

In a December 2013 decision the RO denied service connection for sleep apnea.  In August 2014 the Veteran filed a notice of disagreement with the rating decision.  However, no SOC has been issued as required.  See Manlincon v. West, 12 Vet. App. 238 (1999).  

Upon receipt of the SOC, the Veteran will then have an opportunity to complete the steps necessary to perfect his appeal of the claim to the Board by filing a timely substantive appeal (e.g., a VA Form 9 or equivalent statement).  38 C.F.R. §§ 20.200, 20.202, 20.300, 2.301, 20.302, 20.303, 20.304, 20.305.

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran a statement of the case concerning his claim for service connection for sleep apnea.  If, and only if, he submits a timely substantive appeal in response to the SOC, thereby perfecting his appeal as to the claim, should it be returned to the Board for further appellate consideration.

2. Contact the Social Security Administration and obtain a complete copy of any adjudication and the records underlying any adjudication for disability benefits.  All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available.

3.  Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board for appellate review.

The appellant 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 2014).




______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs