Citation Nr: 18150737 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-46 901 DATE: November 15, 2018 ORDER The claim for entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder is dismissed. REMANDED Entitlement to service connection for a bilateral multinodular thyroid goiter, to include as secondary to exposure to herbicidal agents, is remanded. Entitlement to a compensable initial disability rating for bilateral hearing loss is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT In March 2018, the Veteran submitted a written statement to the Board requesting to withdraw the issue of entitlement to an increased initial disability rating for posttraumatic stress disorder. CONCLUSION OF LAW The criteria for the withdrawal of the issue of entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from June 1966 to June 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. With respect to a total disability rating based on individual unemployability (TDIU), the Veteran has appealed for higher schedular rating for his bilateral hearing loss and the record has implied interference with his employment due to his service-connected disabilities. See, Buddy Statement, dated July 2015. Thus, a claim for TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder The Board has jurisdiction over a claim where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104 (2012). An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204 (2018). A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3) (2018). In March 2018, the Veteran submitted a written statement to the Board requesting to withdraw the issue of entitlement to an increased rating for posttraumatic stress disorder. See Correspondence, dated March 2018. Thus, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral multinodular thyroid goiter, to include as secondary to exposure to herbicide agents, is remanded. 2. Entitlement to a compensable initial disability rating for bilateral hearing loss is remanded. 3. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The evidence indicates there may be outstanding relevant VA records. The claims file indicates that the Veteran filed applications for VA vocational rehabilitation in May 2018 and August 2018. To date, the Veteran’s vocational rehabilitation folder has not been associated with the record. VA records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. Accordingly, on remand the Veteran’s complete VA vocational rehabilitation counseling folder, to include all evaluations and narrative reports, should be obtained. Regarding the Veteran’s service connection claim, he asserts that his thyroid goiter is related to herbicide agent exposure during his service in Korea in 1967. However, as the Veteran’s service in Korea concluded prior to April 1968, a presumption of herbicide exposure based upon such service is not warranted. See 38 C.F.R. § 3.307(a)(6)(iii). Nevertheless, the M21-1 provides that a request should be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides when a Veteran claims exposure in Korea, and the service was not between April 1, 1968, and August 31, 1971, or in a unit or entity listed in M21-1, IV.ii.1.H.4.b. See M21-1, IV.ii.1.H.4.c (accessed November 13, 2018). It does not appear that the required development has occurred. Accordingly, more information is needed before the Board can make a fully informed decision. The Veteran was last afforded a VA examination to assess the severity of his bilateral hearing loss in September 2015. Given the passage of time, the Veteran’s assertions that his prior examination was inadequate, and the fact that the Board must remand the claim for other development, on remand, he should be afforded another VA examination to determine the current severity of Veteran’s hearing loss. See 38 C.F.R. § 3.159 (2018); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Finally, as noted above, the issue of TDIU has been raised. To date, this issue has not yet been fully developed or adjudicated by the AOJ. Accordingly, it is remanded for initial development and adjudication. The matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain and associate the Veteran’s complete VA vocational rehabilitation counseling folder, to include all evaluations and narrative reports. If the records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 3. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents during his service in Korea. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 4. Provide the Veteran and his representative notice pursuant to the Veterans Claims Assistance Act (VCAA) as to the issue of entitlement to a TDIU. Additionally, ask him to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to include any part time or occasional employment. 5. Schedule the Veteran for a VA audiological examination to ascertain the current severity and manifestations of his service-connected bilateral hearing loss disability. Any and all studies, tests, and evaluations deemed necessary by the audiologist should be performed, including Maryland CNC testing and a pure tone audiometry test. The examiner is requested to review all pertinent records associated with the claims file. The examiner must comment on the severity of the Veteran’s service-connected bilateral hearing loss disability. He or she should also discuss the effects of the Veteran’s bilateral hearing loss disability on his occupational functioning and daily activities. All lay assertions describing the impact of the Veteran’s bilateral hearing loss should be noted and discussed in the examination report. A complete rationale should be provided for all opinions and conclusions expressed. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel