Citation Nr: 18152613 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-01 729 DATE: November 23, 2018 ORDER Entitlement to service connection for hemorrhoids is denied. Entitlement to service connection for left, lower extremity radiculopathy is denied. Entitlement to service connection for right, lower extremity radiculopathy is denied. Entitlement to an initial increased rating, above 10 percent, for bilateral tinnitus is denied. Entitlement to a compensable rating for methicillin resistant staph aureus (MRSA), also claimed as recurring staph infections, is denied. Entitlement to an increased rating higher than 40 percent, for a lumbar spine strain, is dismissed. Entitlement to a rating in excess of 50 percent prior to April 17, 2018 for panic disorder with agoraphobia is denied. Entitlement to an increased rating of 70 percent, effective April 17, 2018 for panic disorder with agoraphobia, is granted. FINDINGS OF FACT 1. There is no disability of hemorrhoids during the period of the appeal. 2. There is no disability for bilateral lower extremity radiculopathy during the period of the appeal. 3. Tinnitus is currently rated at the highest schedular evaluation. 4. The weight of competent evidence is that there are no signs or symptoms of MRSA or any other service-connected skin condition during the period of the appeal. 5. The Veteran withdrew the appeal for a rating in excess of 40 percent for lumbar spine strain in writing in October 2018. 6. The Veteran’s panic disorder with agoraphobia renders him occupationally and socially impaired in most areas, effective April 18, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hemorrhoids have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for entitlement to service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for entitlement to service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for entitlement to a compensable rating for methicillin resistant staph aureus (MRSA), also claimed as recurring staph infections, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7820 (2017). 5. The criteria for entitlement to an initial increased rating, above 10 percent, for bilateral tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.87, Diagnostic Code 6260 (2017). 6. The criteria for withdrawal of an appeal for a rating in excess of 40 percent for lumbar spine strain have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 7. The criteria for entitlement to an increased rating of 70 percent, but not higher, for panic disorder with agoraphobia, effective April 18, 2018, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.130, Diagnostic Code 9412 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2005 to April 2009 in the United States Coast Guard. This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions in November 2012 and February 2014 of the Department of Veterans Affairs (VA) Regional Offices (RO) in Winston Salem, North Carolina and Montgomery, Alabama respectively. A rating decision in June 2009 first granted service connection for anxiety disorder not otherwise specified (NOS) rated at 30 percent disabling, and for a lumbar spine strain rated at 40 percent disabling. The November 2012 rating decision increased the Veteran’s evaluation to 50 percent for what is now diagnosed as panic disorder with agoraphobia; and it also granted service connection for residuals of a MRSA at a non-compensable level. The same rating decision denied service connection for tinnitus, and denied a higher increased rating for the lumbar spine strain. In April 2016, the Veteran was granted service connection for bilateral tinnitus, rated as 10 percent disabling. Duty to Notify and Assist In correspondence in October 2018, the Veteran’s representative requested that VA provide new examinations for recurrent MRSA infections, bilateral lower extremity radiculopathy, and rectal bleeding, citing outpatient VA treatment records as evidence of manifestations of these disorders. The Board will address the request below. Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. I. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Hemorrhoids Service treatment records (STRs) are silent for any symptoms or treatment for hemorrhoids except that in a December 2008 medical history questionnaire, the Veteran reported a history of anal bleeding that he believed was caused by hemorrhoids. The examiner noted that a rectal examination was not performed. In a February 2009 prior to discharge during a VA general medical examination, a physician noted the Veteran’s report of an onset of rectal bleeding 2007 with intermittent episodes thereafter twice per year without thrombosis or definitive diagnosis. The Veteran reported working full time as a housing officer with no lost time at work. On examination, there were no observed hemorrhoids. A hemorrhoids examination was given in February 2014. The examiner noted that the only reference to recurrent rectal bleeding was the Veteran’s self-reports in the history questionnaire at the time of his discharge physical examination with no abnormalities noted on the 2009 examination. The examiner noted there was no diagnosis or treatment for internal or external hemorrhoids during service, and that the only evidence of hemorrhoids was subjective. No objective findings that showed signs or symptoms of hemorrhoids were noted, and no diagnosis was made. A grant of service connection requires a current disability. 38 C.F.R. § 3.303. The Veteran is competent to report that he observes occasional rectal bleeding. These reports were considered by the two examiners in 2009 and 2014 with no clinical evidence of hemorrhoids. VA outpatient primary care records from clinics in California and Florida are silent for any reports of recurrent episodes or treatment for rectal bleeding or hemorrhoids in general screenings where the Veteran denied any such manifestations when asked. For example, in VA primary care treatment records dated February 12, 2018 and December 18, 2017, the Veteran denied any changes in bowel movements or presence of bright red blood. The Board places greater weight on the reports the Veteran provided to his primary care clinicians than those provided to adjudicators. The weight of competent evidence is that the Veteran does not have a chronic hemorrhoid disability. The Board considered the representative’s request for another examination. However, the request was based on the Veteran’s reports that have been considered during two examinations and in questioning by primary care clinicians on many occasions with opportunities for the Veteran to report symptoms in the context of receiving treatment. Even if the Veteran does have recurrent episodes of bleeding, the examiner in 2015 reviewed the service treatment records and found no objective evidence of an onset in service or cause by any aspect of service. Since there is not a disability for hemorrhoids, entitlement to service connection is denied. 2. Bilateral Lower Extremity Radiculopathy There are no mentions of radicular symptoms in the STRs. The Veteran submitted private medical records in May 2012 that showed some narrowing of the lumbar spine and diagnosis of lumbar spondylosis with retrolisthesis without spondylolysis or compression. A mild disc bulge was also noted. An examiner in February 2014 noted that the lower extremities experienced mild numbness but concluded that there was no objective evidence of radiculopathy. An examination on December 1, 2014 recorded the Veteran reporting that he had severe symptoms of radiculopathy, but the examiner noted these were subjective and again noted that there were no objective signs of radiculopathy from the radiograph or the examination. A VA examination took place in December 2015. This examiner noted the Veteran’s reports of near-constant pain, that his flare-ups make it hard to sit or stand for long periods of time and that his flexion, extension, lateral, and rotational movements were all limited. The examiner noted no reduction of reflexes or sensory deficits but did record the Veteran’s subjective reports of moderate to severe lower extremity pain. The examiner referred to a magnetic resonance image obtained in February 2014 that showed no disc herniation or paraspinous masses. The examiner concluded that there were no objective or radiographic findings to suggest radiculopathy. As noted by the Veteran’s representative, the Veteran reported to his outpatient clinicians in July 2017 that he was experiencing worsening numbness and tingling in his legs and that he had the symptoms for the past 10 years. An appointment was made for a magnetic resonance image, but the Veteran was unable to complete the testing. Due to worsening symptoms the Veteran was given another examination in April 2018. Straight leg raising tests were negative. The examiner noted no reported symptoms of radiculopathy and no reflex or sensory abnormalities of the lower extremities. As an examination was provided after the representative’s citation to earlier reports of lower leg symptoms, the Board finds that an additional examination is not warranted. The Veteran is competent to report lower leg pain and numbness but the Board places greater weight on the results of several examinations and at least one imaging study that did not find objective evidence of radiculopathy. There has never been a diagnosis for bilateral lower extremity radiculopathy. Without a current disability there can be no service connection. 38 C.F.R. § 3.303. Because there is no disability, the claim for service connection is denied. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. In this case, staged ratings are not warranted because the Veteran has demonstrated a relatively stable level of symptomatology throughout the appeal which was not sufficient for a higher rating at any other time during the appeal process. Fenderson, 12 Vet. App. At 126-27. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 3. Bilateral Tinnitus Effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2) (2015); 68 Fed. Reg. 25822 (June 2003). See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). This, however, does not amount to a liberalizing change, but rather a clarification of existing law. Tinnitus was granted service connection at 10 percent effective on November 9, 2011. This is the highest compensable rating for tinnitus. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 4. MRSA STRs mention that the Veteran did experience MRSA infection during service. In the December 2015 examination, the Veteran reported that he had not experienced any skin issues in the past two years, and that in the past he would have “zit like” marks on his body. The examiner did not find any evidence of current skin issues, and no treatment of any kind had been used in the past couple of years. To receive a 10 percent rating for Diagnostic Code 7820 there must be at least one of the following characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immuno-suppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating requires at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immuno-suppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is available what at least one of the following characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immuno-suppressive drugs required over the past 12-month period. Neither lay or medical evidence support the need for an increased rating. In 2015 the Veteran stated that he had not experienced any MRSA outbreak in the past two years. The examiner did not find any signs or symptoms of MRSA on the Veteran’s body. In early July 2016, the Veteran reported an outbreak of a rash on his chest that appeared to be a combination of boils and blisters. A VA clinician acknowledged the Veteran’s history of MRSA infections and advised the Veteran to seek care at a private hospital emergency room since he lived distant from the VA A notation several days later by a VA clinician indicated that VA had received notice of the Veteran’s treatment at a private hospital and that the Veteran reported that he had been prescribe medication. There was no follow up or any mention of the nature of the rash, a specific diagnosis, or on-going or recurrent symptoms in any VA records through July 2018. The Veteran has not authorized VA to obtain the records of private care. The Board finds that there is insufficient evidence of an outbreak of a MRSA infection during the period of the appeal. The Veteran was advised to seek treatment for a rash on one occasion in view of his history, but there is no evidence that the rash was a recurrent MRSA infection as would be appropriate for follow up care and update of the Veteran’s history. Rather, there was unspecified medication, an unspecified length of hospital care, and no diagnosis of the nature of the outbreak which apparently resolved. Although notified that he could submit evidence during the period of the appeal, the Veteran did not request or authorize VA to obtain the hospital records nor submit them himself. All the higher ratings of 10 percent, 30 percent, and 60 percent require that lesions are present on at least 5, 20, or 40 percent of the body, or like-wise for the affected area, in order to receive those respective ratings. 38 C.F.R. § 4.118, Diagnostic Code 7280. Or, there must be intermittent, systemic, or near-constant systemic therapy to keep the lesions at-bay. Id. Given that no lesions or treatment specifically for a MRSA infection (and not a generic skin infection from unknown causes) has been present for this appeal period, the Board finds that a compensable rating for MRSA is currently not warranted. The Board has also considered rating the Veteran under another diagnostic code. However, since there are no signs or symptoms of current MRSA caused lesions, and no evidence of another skin irritant, rating under another code is not necessary since the current diagnostic code is most applicable, and because no other code would afford the Veteran a higher rating. 5. Panic Disorder The November 2012 examination changed the Veteran’s diagnosis from an unspecific anxiety disorder to panic disorder with agoraphobia. The examiner noted racing thoughts, reduced reliability and productivity in occupational and social functioning, that he had anxiety, panic attacks occurred more than weekly, he suffered from chronic sleep impairment, and he had flattened affect. Additional symptoms included paranoia and derealization. He told the examiner he began a training program for a job but had to drop out because of the stress. At the time of the exam the Veteran was attending school. The examiner said the Veteran’s case was “complex,” and that a true assessment of the Veteran would require more than 2 hours; the examiner also stated that the Veteran may have a thought disorder but that was tough to diagnose due to the Veteran’s high anxiety. His next examination took place in December 2015. Overall the examiner felt that the Veteran suffered only occasional decreases in efficiency with some impairments in occupational and social functioning; but that he generally functioned well. At that time the Veteran was going through a divorce. He spoke a lot with his family out of state, took care of his daughter, and his social life included going on some dates. In 2014 the Veteran completed a bachelor of science degree in business, and was working part-time doing office management. His symptoms included anxiety, suspiciousness, more than weekly panic attacks, chronic sleep impairment, mild memory loss, disturbed motivation and mood, difficulty maintaining effective relationships, and obsessional rituals. Additionally, the Veteran suffered recurrent and unexpected panic attacks, and his agoraphobia made it hard for him to go anywhere in public. He was well groomed, well behaved, spoke normally with some occasional rambling, and displayed average intelligence. The Veteran was also noted to be irritable, easily distracted; he ruminated, and had limited social interactions. Private treatment records were submitted in April 2018. The records cover treatment during 2017. While the Veteran was well behaved, well groomed, and spoke well, he was diagnosed with obsessive compulsive disorder and would get anxious around 2 or more people. Unfortunately, the Veteran had also begun to abuse substances such as opioids. He was not a risk to himself or others, but he did display some rage, anxiety, short term memory loss, and signs of bipolar disorder. Despite all of this, his cognition was noted as normal. The April 2018 examination diagnosed the Veteran with bipolar disorder and said he was totally socially and occupationally impaired. The Veteran did have a relationship with family members, but no friends. He testified that he never went out in public unless he had to, and even then, he would do things at night to avoid others; he last worked in August 2017 because he seemed to not get along with people. (The most recent report by the Veteran was work until October 2017). His symptoms included near-continuous panic or depression, chronic sleep impairment, disturbed mood and motivation, difficulty establishing relationships, and suicidal ideations. He remained polite, but the examiner noted the Veteran’s anxious mood during the exam. Regarding suicidal ideation, the Veteran said he would not act because he did not want to leave his children. The examiner concluded that the Veteran’s psychiatric disabilities gave him limited energy, caused fatigue, caused frustration, impaired his attention, and made him unstable around others. Outpatient records from 2016 were submitted in April 2018. They noted that the Veteran experienced daily panic attacks, he felt awful, and could barely sleep. He even stated, “I feel like I’ve been losing it.” He did not have suicidal or homicidal ideation because he wanted to live for his daughters and girlfriend. Additionally, his social life seemed to have increased as he endorsed daily contacts with friends and family. There were also outpatient records from 2018 that showed the Veteran was now experiencing hopelessness and suicidal ideation. He continued to have issues going out in public because he did not like crowds. Based on the evidence presented during this appeal period the Board finds that a rating of 70 percent, but no higher, is warranted for panic disorder with agoraphobia, effective April 17, 2018—the date upon which an increase is factually ascertainable. 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (Sept. 23, 1998). The increase is warranted because of the Veteran’s total impairment, and not just a few symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). The Veteran has near-continuous panic attacks that cause issues when he is around crowds or interacting with people; this is a major factor in his unemployment since August 2017. Since April 17, 2018 he has occasionally spoken of suicidal ideation, has displayed obsessive rituals, has near-continuous panic, difficulty adapting to stressful situations, and he does have problems maintaining effective relationships. These symptoms have consistently revealed themselves with April 17, 2018; from that date, symptoms have been so severe as to render him occupationally and socially impaired with deficiencies in most areas. He does still maintain relationships with his family and some friends; meaning he is not totally socially impaired. He also does not experience persistent hallucinations or delusions, his behavior is not grossly inappropriate, he has told all of his examiners he is able to perform daily life activities and manage his finances, and he is not disoriented in place or time. 38 C.F.R. § 4.130. Based on the Veteran’s symptoms, the Board grants a rating of 70 percent, but no higher, for the Veteran’s panic disorder with agoraphobia effective April 17, 2018. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the RO granted a TDIU effective October 9, 2017, the day after the Veteran reported ceasing his last employment. The Board considered whether a TDIU was warranted because of his mental health disorder at an earlier date. In a January 2018 application, the Veteran reported that he last worked full time in September 2015 but was able to work in customer service at retail stores and as a bartender through October 8, 2017, although reporting that the jobs involved 25 to 30 hours per week. At issue is whether the Veteran was capable of employment prior to October 2017, not whether he found employment. There is no lay or medical evidence that the part time working hours were limited by his disability rather than the needs of the business. The Board considered the evidence above and finds that the Veteran was able to leave the home, work in businesses that required interaction with the public, and without evidence of termination for any behavioral reasons. Therefore, a TDIU prior to October 9, 2017 is not warranted. 6. Lumbar Spine Strain 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 (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 (2018). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. In correspondence in October 2018, the Veteran through his representative withdrew the appeal for a rating in excess of 40 percent for lumbar spine strain. The Board finds that this written documentation of the Veteran’s request satisfies the requirements for withdrawing the claim. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel