Citation Nr: 1808303 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-20 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus. 2. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder. 3. Whether new and material evidence has been received to reopen a claim of service connection for hepatitis B. 4. Whether new and material evidence has been received to reopen a claim of service connection for a mixed personality disorder. 5. Entitlement to service connection for polysubstance abuse and addiction. 6. Entitlement to service connection for splenomegaly. 7. Entitlement to an effective date earlier than April 14, 2008, for grant of service connection for PTSD. 8. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 9. Entitlement to an initial rating in excess of 40 percent for hemochromatosis. REPRESENTATION Appellant represented by: Matthew Hill, Attorney ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to March 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2008 and March 2013 issued by the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In a July 2015 rating decision an increased rating of 70 percent was granted for PTSD (effective April 14, 2008). As this is not the highest possible rating for PTSD, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). When the case was most recently before the Board in December 2015 the issues listed on the title page were remanded. Although the Veteran requested a Board hearing and a hearing was scheduled in October 2016, the Veteran indicated that he wished to withdraw his hearing request. Subsequently, a videoconference hearing was scheduled on September 13, 2017; however, the record (VACOLS) reflects that he Veteran failed to appear for the hearing. The issues of entitlement to an effective date earlier than April 14, 2008, for the grant of service connection for PTSD and whether new and material evidence has been received to reopen a claim of entitlement to service connection for mixed personality disorder are REMANDED to the (Agency of Original Jurisdiction) AOJ. FINDINGS OF FACT 1. In a September 2016 written statement, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran of his desire to withdraw his appeal for the issues of entitlement to an initial rating in excess of 40 percent for hemochromatosis; entitlement to service connection for polysubstance abuse and addiction; entitlement to service connection for splenomegaly; whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus; whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder; and whether new and material evidence has been received to reopen a claim of service connection for hepatitis B. 2. In a November 2016 written statement, received prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his representative, that the only issue left on appeal with respect to the July 2015 statement of the case is entitlement to an effective date earlier than April 14, 2008, for the grant of service connection for PTSD; this is construed as a withdrawal of the remaining issue (from the July 2015 statement of the case) of entitlement to an initial rating in excess of 70 percent for PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of whether new and material evidence has been received to reopen a claim of service connection for hepatitis B. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 4. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of entitlement to service connection for polysubstance abuse and addiction. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of entitlement to service connection for splenomegaly. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 6. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of entitlement to an initial rating in excess of 70 percent for PTSD. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 7. The criteria for withdrawal of a Substantive Appeal by the appellant have been met with respect to the issue of entitlement to an initial rating in excess of 40 percent for hemochromatosis. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a September 2016 written statement, the Veteran, through his representative, has withdrawn his appeal for the issues of entitlement to an initial rating in excess of 40 percent for hemochromatosis, entitlement to service connection for polysubstance abuse and addiction, entitlement to service connection for splenomegaly, whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus, whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, and whether new and material evidence has been received to reopen a claim of service connection for hepatitis B. In a November 2016 written statement, the Veteran, through his representative, indicated that the only issue remaining on appeal from the July 2015 statement of the case is entitlement to an effective date earlier than April 14, 2008 for the grant of service connection for PTSD. This statement is construed as a withdrawal of the remaining issue from the July 2015 statement of the case, namely entitlement to an initial rating in excess of 70 percent for PTSD. Such withdrawal is effective the date the correspondence was received at the Board. 38 C.F.R. § 20.204 (b)(3). Accordingly, the Board does not have jurisdiction to review the appeal of these issues. ORDER The appeal of the issue of whether new and material evidence has been received to reopen a claim of service connection for bilateral pes planus is dismissed. The appeal of the issue of whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder is dismissed. The appeal of the issue of whether new and material evidence has been received to reopen a claim of service connection for hepatitis B is dismissed. The appeal of the issue of entitlement to service connection for polysubstance abuse and addiction is dismissed. The appeal of the issue of entitlement to service connection for splenomegaly is dismissed. The appeal of the issue of entitlement to an initial rating in excess of 70 percent for PTSD is dismissed. The appeal of the issue of entitlement to an initial rating in excess of 40 percent for hemochromatosis is dismissed. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record contains an April 2015 internal VA email reflecting the Veteran's participation in vocational rehabilitation through VA. Although it is unclear the extent of the Veteran's participation in Vocational Rehabilitation and Education Services, the record clearly reflects that the Veteran has participated in vocational rehabilitation through VA. Unfortunately, review of the record reflects that the Veteran's vocational rehabilitation file is not in the claims file. The "left flap" of the old paper claims file is in the electronic record (dated June 2017); however, the complete vocational rehabilitation is not of record and the November 2017 supplemental statement of the case does not reflect that such documents were considered in adjudicating the claims on appeal. Importantly, the United States Court of Appeals for Veterans Claims (Court) has held that records generated by VA facilities that may have an impact on the adjudication of a claim, such as vocational rehabilitation records, are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records, as they may affect all of the Veteran's claims on appeal. 38 C.F.R. § 3.159 (c) (2017). Therefore, the Veteran's complete vocational rehabilitation file should be obtained on remand. Additionally, despite the record reflecting that the Veteran failed to appear for a videoconference hearing on September 13, 2017 (noted above), a subsequent letter was sent to the Veteran informing his that his Travel Board hearing was scheduled for September 19, 2017. There is no record whether this hearing was held, or whether the Veteran failed to appear. As such, clarification regarding this hearing is required. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide clarification regarding whether the September 19, 2017 Travel Board hearing was held or cancelled, and whether the Veteran wishes to have any hearing in this case. 2. Obtain the Veteran's complete VA Vocational Rehabilitation file and associate it with the claims file. 2. Then, readjudicate the claims on appeal based upon a complete review of the record, including the vocational rehabilitation records/file. If any benefit remains denied, issue a supplemental statement of the case (SSOC) and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs