Citation Nr: 1603377 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-22 599 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for memory loss. 2. Entitlement to service connection for epilepsy. 3. Entitlement to total disability evaluation based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran had two periods of service. The Veteran first served on active duty from January 10, 1972 to January 30, 1974. The Veteran's discharge for this period of service is honorable. Therefore, the Veteran is entitled to all applicable VA benefits for this period of service for which he may be eligible. The Veteran also served from January 31, 1974 to October 29, 1974. The Veteran's discharge for this period of service is considered to have been issued dishonorable for VA purposes. Therefore, the Veteran is not eligible for benefits based on this period of service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the RO. In November 2015, the Veteran testified at a Board hearing before the undersigned. A transcript of that proceeding is of record and has been associated with the claims file. Also in November 2015, the Veteran submitted additional evidence along with a waiver of initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2015). The issues of service connection for epilepsy and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal of the issue of entitlement to service connection for memory loss be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issue of entitlement to service connection for memory loss have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105 (West 2014), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Under 38 C.F.R. § 20.204, only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (2015). During the November 2015 Board hearing, the Veteran's authorized representative stated on the record that the Veteran wished to withdraw the issue of entitlement to service connection for memory loss. Because the Veteran's authorized representative has clearly indicated the Veteran's wish to withdraw this issue, 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 the claim is therefore dismissed. ORDER The claim as to entitlement to service connection for memory loss is dismissed. REMAND The Board finds that additional evidentiary development is required before the following claims can be properly adjudicated. In regard to the claim for service connection for epilepsy, a VA examiner in December 2010 stated that without further description and/or information about the evaluation and/or treatment at that time, it is not possible to state without resorting to mere speculation whether the Veteran was suffering from epilepsy during his first period of service. The examiner noted that the Veteran reported a history of passing out during his first period of service, however the examiner stated that passing out is a non-specific physical event with a myriad of possible causes, seizure disorder among them. In November 2015, a private physician reported that it is at least likely as not that the Veteran's episodes were seizures if he has a seizure disorder. Given the above, the Board finds that an addendum opinion is warranted to address whether the Veteran's passing out episodes during his first period of service signify the onset of his current epilepsy. In regard to the claim for TDIU, the claim for service connection for epilepsy may affect the Veteran's claim for TDIU. Thus, the Board finds that the claim for TDIU is inextricably intertwined with the claim for service connection. As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Accordingly, the case is REMANDED for the following action: 1. The RO shall request an opinion from the appropriate examiner as to whether the Veteran's epilepsy is directly related to his first period of service (January 10, 1972 - January 30, 1974). If an examination is necessary to provide the required opinion, schedule such with the Veteran. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review the claims file. Based on a review of the entire record and a history provided by the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's epilepsy had its clinical onset during his first period of service (January 10, 1972 - January 30, 1974) or is otherwise related to an event or incident during this period of service. The examiner must provide a fully reasoned rationale for any and all opinions offered, including a discussion of the facts of this case and any medical studies or literature relied upon. Specifically, the examiner must discuss the Veteran's service treatment records which note a history of passing out episodes during his first period of service and the private medical records, which includes an opinion that it is at least likely as not that the episodes were seizures if he has a seizure disorder. If the examiner is unable to provide any of the requested opinions without resorting to mere speculation, he or she must explain why that is the case. 2. After completion of the above development, the Veteran's claims, including his claim for TDIU, must be readjudicated. If any benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case. 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 2014). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs