Citation Nr: 1642828	
Decision Date: 11/08/16    Archive Date: 12/01/16

DOCKET NO.  10-29 752	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for a temporomandibular joint (TMJ) disability, to include as due to an undiagnosed illness.

2.  Entitlement to service connection for a left shoulder disability, to include as due to an undiagnosed illness.

3.  Entitlement to service connection for a right shoulder disability, to include as due to an undiagnosed illness.

4.  Entitlement to an initial rating in excess of 10 percent prior to March 26, 2014 and 20 percent thereafter for status post L5-5 discectomy.

5.  Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity.

6.  Entitlement to an initial rating in excess of 30 percent prior to May 23, 2013 and in excess of 70 percent from May 23, 2013 to February 8, 2015, from May 1, 2015 to June 7, 2015, and as of August 1, 2015 for an acquired psychiatric disability, to include obsessive compulsive disorder (OCD) and major depressive disorder.

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

C. Jones, Associate Counsel


INTRODUCTION

The Veteran had active military service from March 2001 to June 2007.

These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2007 and January 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island and July 2013 and December 2013 rating decisions from the RO in Muskogee, Oklahoma.  

In the December 2007 rating decision, the RO, in pertinent part, granted service connection for a lumbar spine disability and assigned a 10 percent rating, effective June 7, 2007.  The RO also denied service connection for right and left shoulder disabilities.  In the January 2008 rating decision, the RO granted service connection for radiculopathy of the lower left extremity and assigned a 10 percent rating, effective June 7, 2007 and denied service connection for a TMJ disability.

The Veteran testified before the undersigned at a Board hearing in May 2011 with regard to the issues of service connection for right and left shoulder disabilities and a TMJ disability and entitlement to increased ratings for the lumbar spine disability and radiculopathy of the lower left extremity.  A transcript of the hearing has been associated with the claims file.  

Thereafter, in a March 2013 decision, the Board, in part, remanded the issues of entitlement to service for a right shoulder disability, a left shoulder disability, and a TMJ disability and entitlement to increased ratings for the appellant's lumbar spine disability and radiculopathy of the left lower extremity.  The Board granted service connection for a psychiatric disability, originally claimed as obsessive compulsive disorder (OCD).

Following the Board's March 2013 decision, jurisdiction was transferred to the RO in Muskogee, Oklahoma.  In a July 2013 rating decision, the RO granted service connection major depressive disorder with alcohol abuse, claimed as obsessive compulsive disorder, and assigned a 30 percent rating prior to May 23, 2013 and 70 percent thereafter.  In the December 2013 rating decision, the RO denied entitlement to a TDIU.  Thereafter, jurisdiction was transferred back to the RO in Providence, Rhode Island.  

In the November 2014 rating decision, the RO increased the rating for the Veteran's service-connected lumbar spine disability to 20 percent disabling, effective, March 26, 2014.  Afterward, jurisdiction was transferred to the RO in Boston Massachusetts.

In a September 2015 rating decision, the RO assigned a 100 percent rating for the Veteran's service-connected psychiatric disability, effective February 9, 2015, due to hospitalization over 21 days.  A 70 percent evaluation was assigned, effective May 1, 2015.  A 100 percent rating was again assigned, effective June 8, 2015, due to hospitalization for more than 21 days.  The 70 percent rating was resumed, effective August 1, 2015.  

Jurisdiction has been returned to the RO in Providence, Rhode Island.

The issues of entitlement to an increased rating for the Veteran's psychiatric disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In correspondence received in April 2015, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal concerning the issues of entitlement to service connection for left and right shoulder disabilities and a TMJ disability and entitlement to increased ratings for a lumbar spine disability and radiculopathy of the lower left extremity.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a left shoulder disability.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015).

2.  The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a right shoulder disability.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015).

3.  The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to service connection for a temporomandibular joint (TMJ) disability.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015).

4.  The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to an initial rating in excess of 10 percent prior to March 26, 2014 and 20 percent thereafter for status post L5-5 discectomy.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015).

5.  The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the lower left extremity.  38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

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 (West 2014).  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 (2015).  Withdrawal may be made by a claimant or by an authorized representative.  38 C.F.R. § 20.204 (2015).

In correspondence received in April 2015, the appellant indicated that he was withdrawing the appeal as to the issues of entitlement to service connection for left and right shoulder disabilities and a TMJ disability and entitlement to increased ratings for a lumbar spine disability and radiculopathy of the lower left extremity.  Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues.  As such, the Board does not have jurisdiction to review the issues and they are dismissed.


ORDER

The appeal of the issue of entitlement to service connection for a left shoulder disability is dismissed.

The appeal of the issue of entitlement to service connection for a right shoulder disability is dismissed.

The appeal of the issue of entitlement to service connection for a temporomandibular joint (TMJ) disability is dismissed.

The appeal of the issue of entitlement to an initial rating in excess of 10 percent prior to March 26, 2014 and 20 percent thereafter for status post L5-5 discectomy is dismissed.

The appeal of the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the lower left extremity is dismissed.


REMAND

The Veteran contends that a higher rating is warranted for his service-connected psychiatric disorder.  He also asserts that he is entitled to a TDIU.  

In the most recent rating decision dated in September 2015, the RO assigned 100 percent ratings for the Veteran's psychiatric disability due to periods of hospitalization more than 21 days.  The evidence of record at the time of the rating decision included VA treatment records from the Brockton VA Medical Center (VAMC) dated from February 9, 2015 to April 13, 2015 and records from the Topeka VAMC dated from June 8, 2015 to July 2, 2015.  Following the September 2015 rating decision, additional VA treatment records dated from September 2007 to March 2016 were associated with the claims.  However, the additional VA treatments records have not been considered by the RO and the Veteran did not waive initial RO consideration of this new evidence.  See 38 C.F.R. § 20.1304 (c) (2015).

Moreover, the Veteran's most recent VA examination to evaluate the severity of his psychiatric disability was conducted in November 2014, prior to the periods of hospitalization.  It appears that his symptoms have worsened since the last examination, as evidenced by the need for inpatient care.  Accordingly, another examination should be afforded in this case.  

The Board finds that the appellant's claim of entitlement to a TDIU is inextricably intertwined with the issue being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to evaluate his service-connected acquired psychiatric disorder, to include OCD and major depressive disorder.  The examiner should conduct all necessary testing and report all relevant findings.  The examiner should also discuss any impairments in the workplace that would likely arise as a result of the psychiatric symptoms.

2.  Thereafter, the RO/AMC must review the record, including all newly acquired evidence since the September 2015 rating decision, including the VA treatment records added to the claims file, and then readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and an appropriate period of time in which to respond.  Then, return the appeal 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).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs