Citation Nr: 1805735 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-01 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for bilateral leg cramps. 3. Entitlement to service connection for low back pain. 4. Entitlement to service connection for a dental condition. 5. Entitlement to an initial disability rating in excess of 30 percent prior to January 5, 2015, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD). 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2008, the Veteran's respective service connection claims were denied. In April 2015, he was granted service connection for his PTSD and assigned a 30 percent evaluation effective March 30, 2007, and a 50 percent evaluation effective January 5, 2015. In October 2015, his TDIU claim was denied. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The issues of entitlement to an initial increased disability rating for PTSD 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 May 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested on the issues of entitlement to service connection for headaches, bilateral leg cramps, low back pain, and a dental condition. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran involving claims seeking entitlement to service connection for headaches, bilateral leg cramps, low back pain, and a dental condition have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran stated at his videoconference hearing on May 2017 that he intended to withdraw his appeal on the issues of entitlement to service connection for headaches, bilateral leg cramps, low back pain, and a dental condition. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on these four issues and they are dismissed. ORDER Entitlement to service connection for headaches is dismissed. Entitlement to service connection for bilateral leg cramps is dismissed. Entitlement to service connection for low back pain is dismissed. Entitlement to service connection for a dental condition is dismissed. REMAND In support of his remaining claims, the Veteran submitted a September 2017 psychological evaluation from a private psychologist who stated that outpatient treatment records from 2016 "saw his PTSD as unchanged and possibly somewhat worsened." A September 2017 evaluation from a private certified vocational rehabilitation counselor also referenced psychiatric notes dated in October 2016 and June 2017. In his May 2017 Board testimony, the Veteran stated that he continues to receive VA treatment once every three months for his PTSD. However, a review of the Veteran's claims file reflects that the most recent VA treatment records are dated only from September 2015. On remand, the claims file should be updated to include all outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran was last afforded VA examinations in January 2015 to assess the severity of his PTSD. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a potential worsening of the Veteran's PTSD since the last examinations, and the last examinations were conducted more than three years ago, a new examination should be obtained on remand. Finally, the Veteran's Application for Increased Compensation based on Unemployability (VA Form 21-8940), received in August 2015, noted that he last worked full-time in 2012. However, the Veteran's employment history appears to be incomplete based on records received from the Social Security Administration (SSA). On remand, the Veteran should be asked to provide a more thorough educational and employment history. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated since September 2015. If no medical records are available, this should be noted in the Veteran's claims file. 2. Contact the Veteran and request that he submit an updated VA Form 21-8940, with a detailed educational and employment history that includes all employment dated prior to January 2011. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The claims folder and all pertinent records should be made available to the examiner for review. The examiner should discuss the symptomatology exhibited by the Veteran and the level of occupational and social impairment caused by his disability. In particular, the examiner should comment on the extent of any functional impairment caused solely by the Veteran's disabilities that would impact his ability to obtain or maintain substantially gainful employment. The examiner should specifically comment on the Veteran's statements concerning the effect of his PTSD on his ability to maintain substantially gainful employment. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. 4. After conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. 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 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. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs