Citation Nr: 1753580 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-13 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral knee arthritis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robin M. Webb, Esq. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from February 1971 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2017, the Veteran withdrew his request for a Board hearing in writing. Therefore, these matters are ready for further appellate review. Recently, in October 2017, the Veteran's representative averred that the issue of entitlement to an evaluation in excess of 50 percent for service-connected depression with anxiety and chronic alcohol abuse was presently on appeal before the Board. However, a March 2012 rating decision denied entitlement to a higher rating for depression. The Veteran filed a May 2012 notice of disagreement, and a January 2014 statement of the case (SOC) was issued. In April 2014, more than one year after notice of the rating decision, and more than 60 days after the issuance of the SOC, the Veteran filed an untimely substantive appeal. See 38 C.F.R. § 20.302(b) (2016). An April 2014 RO decision determined that the appeal was untimely. The Veteran did not file a notice of disagreement with the April 2014 RO decision, which became final. See 38 C.F.R. § 20.302(a). The Board acknowledges the representative's argument that a claim for a higher rating for service-connected depression is implicit in the TDIU claim presently on appeal before the Board. However, the January 2014 SOC adjudicated both the TDIU claim currently on appeal as well as the depression rating claim. No finding of an implicit claim for a higher rating for depression is required because an explicit claim for a higher rating for the depression was in fact already before the RO and adjudicated by the RO. The Veteran timely filed an appeal as to the TDIU claim, but not as to the depression rating claim. Therefore, the Board finds that the October 2017 correspondence indicates that the Veteran may wish to file a formal claim for an increased rating for his service-connected depression. Effective March 24, 2015, VA amended its regulations requiring that a claim for VA compensation be provided on a form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p) and 3.150(a) (2015). Therefore, should the Veteran wish to file a claim for an increased rating for his service-connected depression, he should do so on the required form (i.e., Form 21-526), which is available online at https://www.ebenefits.va.gov/ebenefits/ and at the local RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT In October 2017, the Veteran withdrew from appellate review his claim for service connection for bilateral knee arthritis. CONCLUSION OF LAW The criteria for withdrawal by the Veteran of an appeal of a claim for service connection for bilateral knee arthritis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Dismissal With regard to the Veteran's claim for service connection for bilateral knee arthritis, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). In October 2017, before the Board promulgated a decision in this matter, the Veteran, through his representative, submitted a written statement that he withdrew from appellate consideration his claim for service connection for bilateral knee arthritis. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim, and it must therefore be dismissed. ORDER The appeal of entitlement to service connection for bilateral knee arthritis is dismissed. REMAND The Veteran claims entitlement to a TDIU, particularly as due to his service-connected depression with anxiety and chronic alcohol abuse, and right foot degenerative joint disease (DJD) with a little toe amputation. See Form 21-8940, May 2012. The Veteran reported in October 2017 that he is presently working, although he previously reported unemployment during the period on appeal. In October 2017, the Veteran reported attending weekly mental health therapy sessions at the VA medical center, and he requested that his more recent VA treatment records for his depression be associated with the claims file. Therefore, this matter should be remanded to obtain the Veteran's more recent VA mental health treatment records dated since December 2016. Also, the Veteran reported in October 2017 that his depression with anxiety and chronic alcohol abuse may have worsened since the last VA examination in December 2011. Therefore, on remand, the Veteran should be afforded a new VA examination to address the current severity of his depression disability. Finally, the Board notes that since the issuance of the January 2014 statement of the case (SOC), the Veteran's Social Security Administration (SSA) records were associated with the claims file (prior to certification to the Board), as well as his vocational rehabilitation records (after certification to the Board). Therefore, on remand, all of the new evidence added to the claims file, including the SSA and VRE records, should be reviewed by the RO prior to the issuance of a supplemental statement of the case (SSOC). See 38 C.F.R. §§ 19.37 and 20.1304. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). Expedited handling is requested.) 1. Associate with the claims file all of the Veteran's more recent VA mental health treatment records dated since December 2016. 2. After the above development has been completed, schedule a new VA examination to address the current severity of the Veteran's service-connected depression with anxiety and chronic alcohol abuse. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Of particular interest are the nature, frequency and severity of those manifestations resulting in occupational impairment. A complete rationale for any opinions expressed should be provided. Regarding the TDIU claim, the examiner should address the effect of the Veteran's depression with anxiety and chronic alcohol abuse on his occupational functioning. 3. Ensure all of the new evidence associated with the claims file since the January 2014 SOC has been reviewed, including but not limited to the Veteran's SSA and VRE records. 4. Then, readjudicate the Veteran's claim for a TDIU. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs