Citation Nr: 18157251 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-60 286 DATE: December 12, 2018 ORDER The issue of entitlement to an effective date earlier than May 28, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED The issue of entitlement to a higher initial rating for PTSD, currently evaluated as 50 percent disabling is remanded. FINDING OF FACT In an October 2018 correspondence, the Veteran’s representative requested that the appeal for entitlement to an effective date earlier than May 28, 2009, for the grant of service connection for PTSD, be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to an effective date earlier than May 28, 2009, for the grant of service connection for PTSD, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1999 to August 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2018, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider such newly received evidence. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. 1. Entitlement to an Earlier Effective Date for the Grant of Service Connection for PTSD The Veteran has perfected an appeal as to the issue of entitlement to an effective date earlier than May 28, 2009, for the grant of service connection for PTSD. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204 (b). Withdrawal may be made by the claimant or the claimant’s authorized representative. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b) (1). Following certification of the appeal to the Board and prior to promulgation of a decision in this case, the Veteran’s representative requested the withdrawal of the appeal for entitlement to an effective date earlier than May 28, 2009, for the grant of service connection for PTSD, in an October 2018 written correspondence. See Correspondence, received October 2018. As such, there remains no allegation of error of fact or law for appellate consideration as to the issue. As the Board does not have jurisdiction to review the appeal for entitlement to an effective date earlier than May 28, 2009, for the grant of service connection for PTSD, the issue is dismissed. VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). REASONS FOR REMAND 1. Entitlement to a Higher Initial Rating for PTSD The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to an initial disability rating in excess of 50 percent for PTSD. The Veteran was last provided a VA examination relating to his PTSD in October 2016. In an October 2018 correspondence the Veteran stated that his condition has increased in severity. See VA Form 21-4138, Statement in Support of Claim, received October 2018. Specifically, the Veteran stated that he hears things that are not there or are not occurring. The Veteran further stated that he has had thoughts of hurting himself or others and that he has panic attacks every morning. In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Additionally, in the October 2018 statement in support of claim, the Veteran stated that he currently receives treatment for his service-connected PTSD at the Vet Center. The most recent VA treatment records in the Veteran’s claims file are from April 2017. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from April 2017. 2. After the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran’s service-connected PTSD. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether a higher initial rating for PTSD may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel