Citation Nr: 1804334 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-15 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a digestive disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and secondary to service-connected PTSD. 3. Entitlement to service connection for a skin disability, including basal cell carcinoma, squamous cell carcinoma, and chloracne, to include as due to herbicide agent exposure. 4. Entitlement to service connection for a chest pain disability, to include as due to herbicide agent exposure or secondary to service-connected PTSD. 5. Entitlement to service connection for a respiratory disability, to include as due to herbicide agent exposure or secondary to service-connected PTSD. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012, December 2012, and February 2014 rating decisions by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, a different Veterans Law Judge remanded these issues; the case has since been reassigned to the undersigned. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran is further action is required. FINDING OF FACT The Veteran, through his representative, withdrew his appeal of service connection for a digestive disability, hypertension, a skin disability, a chest pain disability, and a respiratory disability in an August 2016 written statement. CONCLUSION OF LAW The criteria for withdrawal of the issues of service connection for a digestive disability, hypertension, a skin disability, a chest pain disability, and a respiratory disability are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. Withdrawal can be by the Veteran or by his representative. Id. In an August 2016 written statement, the Veteran, through his representative withdrew his appeal of the issues of service connection for a digestive disability, hypertension, a skin disability, a chest pain disability, and a respiratory disability. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, because the Board has no further jurisdiction to review the appeal on these matters, they are dismissed. ORDER The appeal of the issue of entitlement to service connection for a digestive disability is dismissed. The appeal of the issue of entitlement to service connection for hypertension is dismissed. The appeal of the issue of entitlement to service connection for a skin disability is dismissed. The appeal of the issue of entitlement to service connection for a chest pain disability is dismissed. The appeal of the issue of entitlement to service connection for a respiratory disability is dismissed. REMAND Remand is necessary because the AOJ failed to follow the Board's December 2015 remand instructions. First, the Board remanded the Veteran's claim of entitlement to TDIU for a social and industrial survey which "must include comments on the Veteran's day to day functioning and the degree of social and industrial impairment which the Veteran experiences as a result of his service-connected disabilities." (emphasis added). The May 2016 social and industrial surveyor only discusses the effects of the Veteran's PTSD, and does not discuss the social and industrial impairment of his hearing loss disability and tinnitus. On the other hand, the June 2016 VA examiner appears to discuss non-service-connected disabilities. Because the May 2016 social and industrial survey and June 2016 VA opinion are not in compliance with Board remand instructions, remand for an addendum opinion is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Second, the instructions also required that the social and industrial surveyor seek out information from the Veteran's prior or recent employers. The Board admits that it is unreasonable to require a VA examiner to seek out such information, especially when the Veteran has not provided the required privacy disclosures. However, it does not appear the AOJ gave the Veteran the opportunity to complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, which would in turn be provided by VA to the prior employer to obtain relevant information. Accordingly, remand is necessary on this basis as well. See id. Various VA treatment records appear to be missing from the record. Because the claim is being remanded anyway, the AOJ should obtain all outstanding VA medical records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's service-connected disabilities from July 2011 to November 2012, from June 2015 to March 2016, and from June 2016 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. The AOJ should obtain, if possible, information from the Veteran's prior employer(s) regarding any work impairments and reasons for any cessation of work by providing the Veteran a VA Form 21-4192. The Veteran must assist in the matter by providing such requested information or completing the requested form(s). 3. After the above development has been completed, the AOJ should obtain an addendum opinion from the May 2016 VA social and industrial survey examiner, if available. If the May 2016 social and industrial survey examiner is unavailable, the AOJ should provide the claim file to an examiner or examiners of adequate qualification to discuss the Veteran's day to day functioning and the degree of social and industrial impairment the Veteran experiences as a result of his PTSD, hearing loss disability, and tinnitus. Review of the claim file must be completed and noted as reviewed. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs