Citation Nr: 1807461 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-10 929A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating greater than 10 percent for tinnitus. 3. Entitlement to a compensable disability rating for bilateral hearing loss. 4. Entitlement to service connection for a traumatic brain injury (TBI). 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1968 to September 1970, including in combat in the Republic of Vietnam. In addition to other medals, the Veteran was awarded the Republic of Vietnam Cross of Gallantry with Palm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claims for a disability rating greater than 50 percent for PTSD, a disability rating greater than 10 percent for tinnitus, and for a compensable disability rating for bilateral hearing loss, and also denied claims of service connection for a TBI and for COPD. The RO further denied the Veteran's TDIU claim. The Veteran disagreed with this decision in April 2012. He perfected a timely appeal in June 2014. Although he initially requested a Board hearing when he perfected a timely appeal in June 2014, the Veteran subsequently withdrew this request in correspondence received by VA in April 2016. See 38 C.F.R. § 20.704 (2017). The Veteran appointed his current attorney to represent him before VA by filing a properly executed VA Form 21-22a in August 2015. In April 2016 correspondence, the Veteran withdrew his claims for increased ratings for tinnitus and for bilateral hearing loss and his claims of service connection for a TBI and for COPD. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to a disability rating greater than 50 percent for PTSD and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDING OF FACT In a statement received by VA on April 21, 2016, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal for increased ratings for tinnitus and for bilateral hearing loss and his claims of service connection for a TBI and for COPD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to a disability rating greater than 10 percent for tinnitus by the appellant (or his or her authorized representative) have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal on the issue of entitlement to a compensable disability rating for bilateral hearing loss by the appellant (or his or her authorized representative) have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for a traumatic brain injury (TBI) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for chronic obstructive pulmonary disease (COPD) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 (West 2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. As noted in the Introduction, after the Veteran perfected a timely appeal in June 2014 on the issues of entitlement to a disability rating greater than 10 percent for tinnitus, entitlement to a compensable disability rating for bilateral hearing loss, and entitlement to service connection for a TBI and for COPD, he requested that his appeal for these claims be withdrawn in a letter which was received by the AOJ on April 21, 2016. Accordingly, because there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review these claims and they are dismissed. ORDER Entitlement to a disability rating greater than 10 percent for tinnitus is dismissed. Entitlement to a compensable disability rating for bilateral hearing loss is dismissed. Entitlement to service connection for a traumatic brain injury (TBI) is dismissed. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is dismissed. REMAND Although the Veteran withdrew part of his appeal (as discussed above), he continues to argue that his service-connected PTSD is more disabling than currently evaluated and he is entitled to a TDIU. He specifically contends that his service-connected PTSD, alone or in combination with his other service-connected disabilities, render him unemployable. Having reviewed the record evidence, the Board finds that additional development is required before the underlying claims can be adjudicated. With respect to the Veteran's increased rating claim for PTSD, he essentially contends that this disability has worsened since his most recent VA examination. A review of the record evidence shows that he was examined most recently for PTSD in December 2011. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in December 2011, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected PTSD. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. With respect to the Veteran's TDIU claim, the Board notes that adjudication of the increased rating claim for PTSD being remanded likely will impact adjudication of the TDIU claim. Accordingly, the Board finds that both of these claims are inextricably intertwined and adjudication of the Veteran's TDIU claim must be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected PTSD. The examiner is asked to describe the occupational impact of this disability on his employability. 3. Readjudicate the appeal. 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 (West 2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs