Citation Nr: 18156506 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 08-13 374A DATE: December 11, 2018 ORDER The issue of entitlement to an evaluation in excess of 50 percent from May 1, 2006 to April 10, 2014, and in excess of 70 percent thereafter, for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is dismissed as withdrawn. FINDING OF FACT At his September 2015 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to increased evaluations for PTSD. His withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. CONCLUSION OF LAW The criteria for withdrawal of the appeal for the issue of entitlement to an evaluation in excess of 50 percent from May 1, 2006 to April 10, 2014, and in excess of 70 percent thereafter, for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to April 1969. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In September 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript is included in the claims file. The issue remaining on appeal was originally before the Board in August 2016, at which time the Board dismissed the appeal as withdrawn, along with the issue of entitlement to a compensable evaluation for bilateral hearing loss. The Veteran appealed the dismissal of the PTSD issue and several increased rating issues that were denied to the United States Court of Appeals for Veterans Claims (Court), which affirmed the denials but vacated and remanded the dismissal of the PTSD issue in an April 2018 memorandum decision. The issue is therefore again before the Board. Entitlement to an evaluation in excess of 50 percent from May 1, 2006 to April 10, 2014, and in excess of 70 percent thereafter, for an acquired psychiatric disability, to include PTSD 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a veteran or by his or her authorized representative. Id. Withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). At the Veteran’s September 2015 hearing, the following exchange occurred between him and the undersigned VLJ: VLJ: The hearings, the issues as we’re going to be describing at the hearing are as follows: the issue that is developed is entitlement to residual scars of the right thigh, currently rated as shell frag wound, currently rated at 0 percent. The Veteran also wants to talk about his other injury, muscle wounds to the thigh and the fistula. I’m going to allow that testimony, as it may be on appeal and related to this claim. I’ll make a decision on that after I’ve had an opportunity to review the file after the hearing transcript has been associated with that and I have a chance to look at that. Also associated with that, with the scars is there are scars of the chest and the arm that the Veteran also wants to talk about. Again, I’ll allow testimony on that point and make a determination on jurisdiction later. Uh, the next issue is entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disability, otherwise known as COPD, asthma, and a diaphragm rupture, entitlement to service connection for varicose veins… I’m sorry, entitlement to an increased disability rating for varicose veins which is at 20 percent, entitlement to service connection for ischemic heart disease. That was not, that issue was not certified for appeal, but I do see that the Veteran has completed a substantive appeal on that, so I’m willing to be allowing testimony and adjudicating that appeal. The issues related to an increased rating for PTSD and for hearing loss have been withdrawn. [Addressing the Veteran,] are you satisfied with the characterization of the issues on appeal? VETERAN: Uh, yes, I am, your honor. VLJ: All right. VETERAN: The other scar I mentioned was on my shoulder. VLJ: Okay. Well, we’ll talk about that. Let’s do that. Let’s talk about your scars first of all. Do you have scars? Where are your scars? In its August 2016 decision, the Board found that the above exchange met the criteria for withdrawal. The Court, in its April 2018 memorandum decision, remanded for a more detailed discussion to explain its finding that the Veteran withdrew his claim explicitly, unambiguously, and with a full understanding of the consequences of such action. In briefs filed before the Court, the Veteran argued that there was confusion as to whether he had intended to withdraw his appeal. In support of this, a full history of the appeal from its inception in 2008 was given. While this evidence no doubt shows that the Veteran at one time intended to appeal his rating for PTSD, there is nothing to suggest that he did not simply change his mind when appearing at his September 2015 hearing. Evidence from before and after the date of his hearing is only relevant to the extent that it informs what he desired to do on that date. After the Board’s August 2016 dismissal, the Veteran has since filed a claim for an increased rating for PTSD at the RO. The Veteran gave no indication, however, between the September 2015 hearing and the August 2016 decision that he believed that his appeal of his PTSD rating was still active. While it is true that the Veteran himself did not utter the request to withdraw his appeal on the record, it is clear from the transcript that such withdrawal had been discussed preliminary to the hearing and was memorialized as shown above once the record began. The Veteran expressed his explicit and unambiguous agreement with the VLJ’s characterization of the issues, to include his withdrawal. Indeed, the characterization of the issues makes clear that the Veteran was no passive appellant steered by the VLJ. He raised the issue of muscle wounds to the thigh and fistula, though the VLJ was unaware that such issue was ripe for appeal. The issue of service connection for ischemic heart disease had similarly not yet been certified to the Board, and indeed had to be remanded because the Veteran raised the issue at the hearing and presented testimony prior to the RO’s completion of development. Immediately after agreeing to the issues as characterized by the VLJ, the Veteran clarified exactly which scars he believed were on appeal. The VLJ allowed such testimony, determining jurisdiction at the time of the decision. Such attention to detail on the part of the Veteran shows that he was aware of the importance of the characterization of the issues and the consequences of his testimony. He did not raise the issue of his PTSD or his hearing loss during the remainder of the hearing, instead giving testimony regarding the issues which he chose to pursue. As the Court noted, the Veteran demonstrated his ability to convey coherent arguments about sophisticated medical issues. For these reasons, the Board finds that the Veteran’s withdrawal of his appeal for increased ratings for his PTSD was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. The appeal is therefore dismissed. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel