Citation Nr: 18148196 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-20 238 DATE: November 7, 2018 ORDER The appeal is dismissed with respect to the issue of entitlement to a rating in excess of 50 percent for bipolar disorder. The appeal is dismissed with respect to the issue of entitlement to an effective date of May 15, 2015 for the grant of service connection for obstructive sleep apnea. REMANDED Entitlement to an effective date of August 6, 2014 for the grant of a 50 percent rating for bipolar disorder is remanded. FINDINGS OF FACT 1. On June 16, 2017, prior to the promulgation of a decision in the appeal, VA received a written request from the Veteran to withdraw this appeal as to the issue of entitlement to a rating in excess of 50 percent for bipolar disorder. 2. In a January 2018 rating decision, VA granted an effective date of May 15, 2015 for the grant of service connection for obstructive sleep apnea. VA then erroneously denied the request it had already granted in a March 2018 Statement of the Case (SOC), to which the Veteran responded later in March 2018 with a substantive appeal (VA Form 9). 3. The Veteran’s most recent code sheet (from an April 2018 rating decision) shows the effective date assigned for obstructive sleep apnea is May 15, 2015. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a rating in excess of 50 percent for bipolar disorder. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Because the requested relief has already been granted, the Veteran’s appeal is moot with respect to the issue of entitlement to an effective date of May 15, 2015 for the grant of service connection for obstructive sleep apnea. 38 U.S.C. § 7105 (d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 2005 to October 2005. These matters are on appeal from February 2015, May 2016, and November 2016 rating decisions. In a December 2017 rating decision, VA increased the Veteran’s disability rating for bipolar disorder to 70 percent, effective August 31, 2017. However, because this occurred after the Veteran withdrew his appeal with respect to the issue of an increased rating for bipolar disorder, the Board has characterized that issue as it existed at the time of withdrawal. 1. Bipolar Disorder – Rating in Excess of 50 Percent 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. § 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 Veteran or by his authorized representative. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). On June 16, 2017, VA received a statement from the Veteran in which he indicated that he wished to withdraw this appeal for the issue of entitlement to a rating in excess of 50 percent for bipolar disorder. This satisfies the requirements for the withdrawal of a substantive appeal. 38 C.F.R. § 20.204(b). The Veteran has clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran’s statement meets the criteria for withdrawal of the appeal for this issue. Because the Veteran has withdrawn this appeal for this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the claim is dismissed. 2. Sleep Apnea – Effective Date In a November 2016 rating decision, VA granted service connection for obstructive sleep apnea, effective August 8, 2016. In a December 2016 Notice of Disagreement (NOD), the Veteran expressed disagreement with the effective date and requested a date of May 15, 2015. In a January 2018 rating decision, VA granted the requested effective date of May 15, 2015 based on clear and unmistakable error (CUE) in the previous rating decision. However, in a March 2018 SOC, VA erroneously denied the requested effective date even though it had already granted it; in the SOC, VA did not acknowledge the prior grant. The Veteran responded to the SOC later in March 2018 by filing a substantive appeal (VA Form 9), in which he again requested a May 2015 effective date. The Board notes that the January 2018 code sheet accompanying the grant of an earlier effective date notes that the effective date for the grant of service connection was May 15, 2015. The subsequent, and most recent, code sheet also reflects the same. Because the relief the Veteran has requested with regard to this issue was granted before the Veteran submitted his substantive appeal, there are no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the claim is dismissed. REASONS FOR REMAND 1. Entitlement to an effective date of August 6, 2014 for the grant of a 50 percent rating for bipolar disorder is remanded. The record indicates that the Veteran has been receiving disability compensation from the Social Security Administration since August 2007. Unfortunately, the record does not include the Social Security Administration’s decision, including its basis, or the medical records upon which it relied in making that decision. Because the level of occupational impairment is one of the rating criteria for psychiatric disabilities, these records could affect the Veteran’s disability rating for bipolar disorder during the period from August 6, 2014 to May 8, 2015. On remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain any outstanding Social Security records, including the decision. The matter is REMANDED for the following action: 1. Contact the Social Security Administration, obtain the Veteran’s complete Social Security records, including all decisions and any medical records relied upon in making those decisions, and associate them with the claims file. If the records cannot be obtained or do not exist, notify the Veteran and document their unavailability in the claims file. 2. Readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel