Citation Nr: 18155027 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-16 830 DATE: December 3, 2018 ORDER Entitlement to service connection for a heart disability is dismissed. Entitlement to service connection for erectile dysfunction, to include as secondary to a heart disability, is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a heart disability, is dismissed. REMANDED Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for residuals, broken nose, including headaches and sinusitis, is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected right fourth and fifth toe sprains, status-post surgery with right heel spur, is remanded. Entitlement to an initial, compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to an effective date prior to July 15, 2014, for the award of service connection for right fourth and fifth toe sprains, status-post surgery with right heel spur, is remanded. Entitlement to an effective date prior to July 15, 2014, for the award of service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During the Veteran’s November 6, 2018, Board hearing, prior to the promulgation of a decision in the appeal, he requested withdrawal of the appeal of his claims of entitlement to service connection for a heart disability, and erectile dysfunction and an acquired psychiatric disorder, both to include as secondary to a heart disability. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal on the issues of entitlement to service connection for a heart disability, and erectile dysfunction and an acquired psychiatric disorder, both to include as secondary to a heart disability, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to March 1983. In a May 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for heart disease, including myocardial ischemia. In January 2017, the RO also denied entitlement to a TDIU. The RO again denied entitlement to a TDIU, as well as service connection for an acquired psychiatric disorder and for erectile dysfunction to include as secondary to heart disease, in a March 2017 rating decision. The Veteran perfected an appeal of each of these rating decisions. On November 6, 2018, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). The Board notes that in a March 2015 rating decision the RO, in pertinent part, denied the Veteran’s claims of entitlement to service connection for a lumbar spine disability; residuals, broken nose, including headaches and sinusitis; and pseudofolliculitis barbae; and granted service connection, assigning initial ratings, for right fourth and fifth toe sprains, status-post surgery with right heel spur, and bilateral hearing loss, effective from July 15, 2014. The Veteran submitted an April 2015 Notice of Disagreement (NOD). The RO has not, as yet, addressed these claims in a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the Board has added these claims for the purpose of the Remand herein. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal of an appeal may be made by the appellant or by his authorized representative prior to the Board’s issuance of a final decision. 38 C.F.R. § 20.204. Until the appeal is transferred to the Board, a withdrawal of an appeal is effective when received by the agency of original jurisdiction. Thereafter, it is not effective until received by the Board. During the Veteran’s November 2018 Board hearing, he stated that he was withdrawing his appeal of the claims of entitlement to service connection for a heart disability, and erectile dysfunction and an acquired psychiatric disorder, both to include as secondary to a heart disability. He explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of his claims. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to this appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board therefore finds that the Veteran has withdrawn his appeal. The withdrawal was memorialized in the hearing transcript, prior to the issuance of a final decision on this matter. The withdrawal was thus made in the form and manner required by 38 C.F.R. § 20.204. The filing, then, effectively withdrew the relevant NOD and Substantive Appeal; accordingly, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. The Board, therefore, does not have jurisdiction over the appeal of these claims, and the appeal must be dismissed. REASONS FOR REMAND Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability; Entitlement to service connection for residuals, broken nose, including headaches and sinusitis; Entitlement to service connection for pseudofolliculitis barbae; Entitlement to an initial rating in excess of 20 percent for service-connected right fourth and fifth toe sprains, status-post surgery with right heel spur; Entitlement to an initial, compensable rating for service-connected bilateral hearing loss; Entitlement to an effective date prior to July 15, 2014, for the award of service connection for right fourth and fifth toe sprains, status-post surgery with right heel spur; and Entitlement to an effective date prior to July 15, 2014, for the award of service connection for bilateral hearing loss are remanded. As noted above, the Veteran submitted an April 2015 NOD, more than three years ago, with the March 2015 rating decision that adjudicated these claims. When a timely NOD has been filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. See Manlincon, 12 Vet. App. 238. Accordingly, because no subsequent SOC has been issued with respect to these claims, under Manlincon, 12 Vet. App. at 240, the Board must instruct the RO to issue a SOC. Entitlement to a TDIU is remanded. The Veteran, during his November 2018 Board hearing, specifically asserted that his claim of entitlement to a TDIU was inextricably intertwined with the claims noted above that require remand for the issuance of an SOC and requested that his TDIU claim be remanded in order for the SOC to be issued. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Board agrees. The Veteran testified at his November 2018 hearing that he had retired from his job at the postal service two years prior. On remand, records related to his retirement from the postal service should be obtained, as well as his updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records, dated from February 2018 forward. 2. Obtain records from the postal service concerning the reasons for the Veteran’s retirement. 3. Issue a SOC pertaining to the issues of: (1) Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability; (2) Entitlement to service connection for residuals, broken nose, including headaches and sinusitis; (3) Entitlement to service connection for pseudofolliculitis barbae; (4) Entitlement to an initial rating in excess of 20 percent for service-connected right fourth and fifth toe sprains, status-post surgery with right heel spur; (5) Entitlement to an initial, compensable rating for service-connected bilateral hearing loss; (6) Entitlement to an effective date prior to July 15, 2014, for the award of service connection for right fourth and fifth toe sprains, status-post surgery with right heel spur; and (7) Entitlement to an effective date prior to July 15, 2014, for the award of service connection for bilateral hearing loss. In connection therewith, provide the Veteran with appropriate notice of appellate rights. These issues should not be returned to the Board in the absence of a timely filed substantive appeal. 4. After completing any additional development deemed necessary, to include scheduling the Veteran for a VA examination(s) if required, readjudicate the issue of entitlement to a TDIU in a Supplemental SOC (SSOC). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Purdum