Citation Nr: 1825826 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-24 987A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right arm spasms. 2. Entitlement to service connection for a vision disorder. 3. Entitlement to an initial disability rating in excess of 30 percent for residuals of a traumatic brain injury (TBI). 4. Entitlement to an initial compensable disability rating for a scar of the left temporal scalp. 5. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 6. Entitlement to a compensable disability rating for syncopal attacks and hyperventilation. 7. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to March 28, 2014. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971 in the United States Army. His decorations and awards include the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In August 2017, the Veteran withdrew his request for a Board hearing. The claim for a TDIU prior to March 28, 2014 has been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as discussed further in the remand below. The Board recognizes that in March 2017, the Veteran filed a timely notice of disagreement (NOD) in response to a February 2017 rating decision. Given that this NOD was filed so recently and the RO is likely actively processing it, a remand of these claims for the issuance of a statement of the case (SOC) would be premature at this time. See Manlincon v. West, 12 Vet. App. 238 (1999). In addition, the record contains a statement of the case (SOC) issued in December 2016 on a claim for a higher rating for service-connected seizures. The Veteran did not perfect an appeal of this claim. Thus, this issue is not currently on appeal and will not be addressed by the Board. The electronic filing system contains documents that were associated with the record since the RO's last readjudication of the claims. In the absence of a specific, written request for initial agency of original jurisdiction (AOJ) review of any additional evidence, there is an automatic waiver of AOJ review. See 38 U.S.C. § 7105(e)(1), (2) (2012) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). The issues of entitlement to a rating in excess of 50 percent for PTSD and entitlement to a TDIU prior to March 28, 2014 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In January 2017, after certification of the claims to the Board and prior to the promulgation of a decision in the appeal, the Veteran and his authorized representative requested that the following claims be withdrawn from appeal: entitlement to service connection for right arm spasms, entitlement to service connection for a vision disorder, entitlement to an initial disability rating in excess of 30 percent for residuals of a TBI, entitlement to an initial compensable disability rating for a scar of the left temporal scalp, and entitlement to a compensable disability rating for syncopal attacks and hyperventilation. CONCLUSION OF LAW The criteria for withdrawal of the following claims have been met: entitlement to service connection for right arm spasms, entitlement to service connection for a vision disorder, entitlement to an initial disability rating in excess of 30 percent for residuals of a TBI, entitlement to an initial compensable disability rating for a scar of the left temporal scalp, and entitlement to a compensable disability rating for syncopal attacks and hyperventilation. 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 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 (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. 38 C.F.R. § 20.204. In January 2017 correspondence, the Veteran and his authorized representative withdrew the appeals for the following claims: entitlement to service connection for right arm spasms, entitlement to service connection for a vision disorder, entitlement to an initial disability rating in excess of 30 percent for residuals of a TBI, entitlement to an initial compensable disability rating for a scar of the left temporal scalp, and entitlement to a compensable disability rating for syncopal attacks and hyperventilation. In December 2017, the Veteran's attorney re-submitted the January 2017 correspondence and again requested that these issues be withdrawn from appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration as to these claims. Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. ORDER The appeal for entitlement to service connection for right arm spasms is dismissed. The appeal for entitlement to service connection for a vision disorder is dismissed. The appeal for entitlement to an initial disability rating in excess of 30 percent for residuals of a TBI is dismissed. The appeal for entitlement to an initial compensable disability rating for a scar of the left temporal scalp is dismissed. The appeal for entitlement to a compensable disability rating for syncopal attacks and hyperventilation is dismissed. REMAND With regard to the claim for a higher rating for PTSD, the Veteran last underwent a VA examination over 8 years ago. The record indicates a potential worsening of symptoms, as he was found incompetent in a February 2017 rating decision. Additionally, VA treatment notes are unclear as to the symptoms attributable to his PTSD versus his separately-service connected TBI. A VA examination was scheduled in March 2016 but the Veteran failed to appear. In an April 2017 VA Form 21-4138, the Veteran stated he did not report to his VA examination because he did not receive notice by either mail or telephone of the examination. He stated that he would have attended the VA examination had he known about it. The Board thus finds good cause to reschedule the examination. 38 C.F.R. § 3.655. To the extent the Veteran's attorney has expressed trepidation that further development will result in a denial of the claim, the Board finds it is to the Veteran's benefit to remand for an updated examination, rather than adjudicate the claim at this time. 38 C.F.R. § 3.655(b) instructs that where a claimant fails to report for an examination scheduled in conjunction with a claim for increase, as here, the claim shall be denied. With regard to the claim for a TDIU, the claim was granted in an October 2016 rating decision, effective March 28, 2014. However, the Veteran's attorney seeks a TDIU for the duration of the appeal period in connection with the underlying claim for increase, which was filed in 2010. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the examiner should provide an opinion with regard to this claim. Accordingly, these claims are REMANDED for the following action: 1. Afford the Veteran a VA examination to ascertain the current severity of the service-connected PTSD, in accordance with the applicable worksheet for rating the disorder. All opinions should be supported by a clear rationale. The examiner must additionally address the following: (i.) To the extent possible, the examiner must distinguish the symptoms associated with PTSD from those related to the separately-service connected traumatic brain injury residuals. If the symptomatology cannot be distinguished or is interrelated, the examiner must, in writing, so state. (ii.) The examiner must describe the functional impact of the Veteran's service-connected disability on his ability to secure or follow substantially gainful employment. 2. The RO must ensure that notice of the scheduled examination is sent to the Veteran's current address of record, with copies to his representative. 3. The Veteran is hereby advised that the failure to cooperate in the development of his claims, such as by not reporting to this additional VA examination without good cause, may have adverse consequences on his claims. 38 C.F.R. § 3.655. 4. Thereafter, readjudicate the claims, considering all evidence. If the benefits sought remains denied, the Veteran and his representative should be provided a SSOC. 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs