Citation Nr: 18153053 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-40 912A DATE: November 27, 2018 ORDER The appeal of the issue of whether new and material evidence has been received to reopen a claim for service connection for schizophrenia is dismissed. REMANDED An effective date earlier than December 8, 2015 for the award of service connection for posttraumatic stress disorder (PTSD) is remanded. An initial rating in excess of 50 percent for PTSD prior to August 29, 2016 is remanded. An initial rating in excess of 70 percent for PTSD from August 29, 2016 is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT On an August 2016 VA Form 9, the Veteran withdrew the appeal of the issue of whether new and material evidence has been received to reopen a claim for service connection for schizophrenia. CONCLUSION OF LAW The criteria for withdrawal of appeal by the Veteran of the issue of whether new and material evidence has been received to reopen a claim for service connection for schizophrenia are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the issue of whether new and material evidence has been received to reopen a claim for service connection for schizophrenia, the Board notes that on an August 2016 VA Form 9 the Veteran clearly indicated that he was limiting the appeal to the issue of TDIU. However, a November 2017 supplemental statement of the case included the issue of schizophrenia, and the issue was certified to the Board. Given this procedural history, the Board finds that a formal dismissal of the issue is warranted. 1. Whether new and material evidence has been received to reopen a claim for service connection for schizophrenia The Board may dismiss any appeal which fails to allege specific error of fact or law in a determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.204(a) (2018). Withdrawal may be made by the Veteran or the authorized representative. 38 C.F.R. § 20.204(a). 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). A June 2014 rating decision in part reopened and denied the claim for service connection for schizophrenia and denied a TDIU. In July 2014, the Veteran filed a notice of disagreement to those denials. In August 2016, the Agency of Original Jurisdiction (AOJ) issued a statement of the case on those issues. On a VA Form 9received later that month, the Veteran clearly indicated that he was only appealing the issue of TDIU. Thus, he withdrew the appeal of the issue of whether new and material evidence has been received to reopen a claim for service connection for schizophrenia. Therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to that claim. Accordingly, the Board does not have jurisdiction to review the appeal as to that claim, and it must be dismissed. REASONS FOR REMAND 1. An effective date earlier than December 8, 2015 for the award of service connection for PTSD is remanded. 2. An initial rating in excess of 50 percent for PTSD prior to August 29, 2016 is remanded. 3. An initial rating in excess of 70 percent for PTSD from August 29, 2016 is remanded. A November 2017 rating decision increased the rating for PTSD to 70 percent effective August 29, 2016. In January 2018 the appeal was certified to the Board. In April 2018 the Veteran appointed a new attorney representative. In May 2018, the Veteran filed a notice of disagreement with both the effective date of the award and the disability rating, and requested a hearing before a decision review officer (DRO). In a May 2018 letter, the AOJ acknowledged the Veteran’s notice of disagreement and election of the DRO process. Given the above, to ensure due process, the AOJ should afford the Veteran and his new representative the requested hearing before a DRO. 4. A TDIU is remanded. As the remand of the above claims could affect the claim for a TDIU, the Board finds that the claims are inextricably intertwined and a decision on the TDIU claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Using the Veteran’s new address as reflected in the October 2018 correspondence from his representative, schedule the Veteran for a DRO hearing. 2. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel