Citation Nr: 18154986 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 09-08 664 DATE: December 3, 2018 ORDER The appeal for the issue of entitlement to service connection for an eye disorder other than allergic conjunctivitis and astigmatism is dismissed. The appeal for the issue of entitlement to service connection for a skin disorder is dismissed. The appeal for the issue of entitlement to service connection for a right shoulder disorder is dismissed. The appeal for the issue of entitlement to service connection for bilateral carpal tunnel syndrome is dismissed. The appeal for the issue of entitlement to service connection for sleep apnea is dismissed. The appeal for the issue of entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine prior to July 17, 2017, and in excess of 20 percent thereafter is dismissed. The appeal for the issue of entitlement to an initial evaluation in excess of 10 percent for sciatica of the left lower extremity is dismissed. The appeal for the issue of entitlement to an initial evaluation in excess of 10 percent for sciatica of the right lower extremity is dismissed. The appeal for the issue of entitlement to an initial compensable evaluation for dermatitis of the feet is dismissed. The appeal for the issue of entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to August 20, 2008, and from October 1, 2008, to December 23, 2009, and in excess of 50 percent from December 24, 2009, to November 12, 2015, and on or after February 1, 2016, is dismissed. REMANDED Entitlement to an initial compensable evaluation for headaches prior to July 17, 2017, is remanded. FINDINGS OF FACT 1. In April 2018, prior to the promulgation of a decision in the appeal, the Board of Veterans’ Appeals (Board) received notification from the Veteran by way of his representative that he wanted to withdraw the appeal as to the above issues in the Order section other than entitlement to service connection for bilateral carpal tunnel syndrome. 2. In an August 2017 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left and right upper extremity ulnar compression neuropathy effective from July 17, 2017. The AOJ included the issue of entitlement to service connection for bilateral carpal tunnel syndrome on the corresponding supplemental statement of the case (SSOC) and recertified the case to the Board. 3. In July 2018, prior to the promulgation of a decision in the appeal, the Veteran’s representative submitted a written statement, the content of which indicates that the grant of bilateral upper extremity ulnar compression neuropathy fully satisfied the appeal as to the issue of entitlement to service connection for a bilateral wrist disorder. There is no longer a case or controversy with respect to the remaining issue on appeal. CONCLUSIONS OF LAW 1. The appeal for the issues of service connection for an eye disorder other than allergic conjunctivitis and astigmatism, a skin disorder, a right shoulder disorder, bilateral carpal tunnel syndrome, and sleep apnea is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The appeal for the issues of higher initial evaluations for degenerative disc disease of the lumbar spine, sciatica of the left lower extremity, sciatica of the right lower extremity, dermatitis of the feet, and PTSD, is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to September 2002 and from February 2003 to May 2004 in the United States Army. He also served in the West Virginia Army National Guard and had periods of active duty for training and inactive duty for training. This case came before the Board on appeal from June 2007, September 2007, September 2010, March 2011, May 2013, and April 2016 rating decisions of the Department of Veterans Affairs (VA). A hearing was held before a Decision Review Officer (DRO) in March 2010, and DRO informal conferences were held in July 2013 and August 2017. A hearing was held before the undersigned Veterans Law Judge in July 2012. Transcripts of the hearings and conference reports are of record. The Veteran and his representative cancelled requests for Board hearings on the remaining issues in February 2015 and April 2018 written statements. Thus, those hearing requests are considered withdrawn. In a February 2013 decision, the Board decided other issues that had been on appeal, and remanded other issues, including the bilateral wrist disorder claim. In a November 2016 decision, the Board decided other issues that had been on appeal and remanded the above claims (other than sleep apnea), as well as claims for service connection for a left elbow disorder and irritable bowel syndrome and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for further development. In an August 2017 rating decision, the AOJ granted service connection for a left elbow disorder, irritable bowel syndrome, and left and right upper extremity ulnar compression neuropathy, higher staged evaluations for the headache and lumbar spine disabilities, and entitlement to TDIU, among other things. The Veteran has expressed disagreement with the effective date assigned for TDIU. The AOJ also certified the appeal for the sleep apnea claim shortly after the remanded portion of the case was returned to the Board for appellate review. The Board also granted the Veteran’s representative additional time to submit argument and evidence in support of the appeal. See April 2018 and July 2018 written requests; August 2018 Board letter. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In an April 2018 written statement, the Veteran’s representative indicated that he wanted to withdraw the appeal as to the above issues in the Order section other than entitlement to service connection for bilateral carpal tunnel syndrome. Regarding the bilateral carpal tunnel syndrome claim, the AOJ granted service connection for left and right upper extremity ulnar compression neuropathy effective from July 17, 2017. See August 2017 rating decision. The AOJ included the issue of entitlement to service connection for bilateral carpal tunnel syndrome on the corresponding SSOC and recertified the case to the Board; however, the Board finds that there is no longer a case or controversy with respect to the remaining service connection issue on appeal. In this regard, the Veteran’s representative submitted a July 2018 written statement, the content of which indicates that the grant of bilateral upper extremity ulnar compression neuropathy fully satisfied the appeal as to the issue of entitlement to service connection for a bilateral wrist disorder. In so doing, the representative stated that the diagnosis of ulnar compression neuropathy was consistent with all of the same symptoms that the Veteran had complained about for more than ten years – pain, numbness, and weakness. The representative also outlined the procedural history of the appeal dating back to the June 2007 rating decision in which the AOJ had denied the claim as bilateral carpal tunnel syndrome. The Board also notes that the Veteran’s reported difficulties, such as numbness in his third, fourth, and fifth fingers of both hands, difficulty gripping, and decreased range of motion in the wrists have been associated with the ulnar compression neuropathy. See, e.g., VA examination reports from March 2010, July 2013, and July 2017 with medical opinion. The July 2017 VA examiner determined that the Veteran had ulnar nerve compression in the wrists related to the service-connected elbow disabilities and that his decreased range of motion in the wrists was due to elbow pain. The Board acknowledges the representative’s argument expressing disagreement with the effective date assigned for the bilateral upper extremity disability in the July 2018 written statement; however, that matter is not before the Board. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed. REASONS FOR REMAND In the November 2016 decision, the Board remanded the issue of entitlement to an initial compensable evaluation for headaches for further development, including an instruction to provide an SSOC if any benefit sought was not granted. The AOJ did grant a higher evaluation of 50 percent for headaches effective from July 17, 2017, while the case was in remand status. See August 2017 rating decision. Because that evaluation does not represent the highest possible benefit, the issue remains appellate status; however, it was not included as part of the August 2017 SSOC. AB v. Brown, 6 Vet. App. 35 (1993). Moreover, the April 2018 written statement from the Veteran’s representative did not include the issue in the list of issues to withdraw. See also July 2018 representative written statement (appears to be a follow-up to the April 2018 written statement). Based on the foregoing, it is unclear if the Veteran’s representative intended to also withdraw the issue of entitlement to an initial compensable evaluation for headaches prior to July 17, 2017, and clarification is necessary in this regard. The case is REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative to clarify whether they intend to continue the appeal for the issue of entitlement to an initial compensable evaluation for headaches prior to July 17, 2017. The April 2018 written statement from the Veteran’s representative requesting withdrawal of certain issues on appeal at that time did not include that issue. 2. If they do intend to continue the appeal or no response is received, the issue of entitlement to an initial compensable evaluation for headaches prior to July 17, 2017, should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel