Citation Nr: 20021618 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-42 561 DATE: March 26, 2020 ORDER Service connection for a back disorder is dismissed. Entitlement to a separate evaluation for agoraphobia is dismissed. Entitlement to a separate evaluation for nervousness is dismissed. Entitlement to a separate evaluation for a depressive disorder is dismissed. Entitlement to a compensable rating for the service-connected right arm and left shoulder scars is dismissed. Entitlement to a rating higher than 10 percent for the service-connected painful right arm scar is dismissed. Entitlement to a rating higher than 30 percent for the service-connected right wrist and hand arthrofibrosis is dismissed. Entitlement to a rating higher than 20 percent for the service-connected left shoulder disability is dismissed. REMANDED Service connection for a right shoulder disorder is remanded. Entitlement to an initial compensable rating for the service-connected right upper extremity peripheral neuropathy is remanded. Entitlement to a rating higher than 30 percent prior to November 2, 2015 and 70 percent from November 2, 2015 onward for the service-connected anxiety and depressive disorders is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT During the September 2019 Board hearing, prior to the promulgation of a decision, the Veteran, with his representative, withdrew his appeals for service connection for a back disorder, separate ratings for agoraphobia, a depressive disorder and a nervous disorder, and higher ratings for the right arm and left shoulder scars, painful right arm scar, right wrist and hand arthrofibrosis, and left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a back disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal for a separate rating for agoraphobia disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the appeal for a separate rating for nervousness have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of the appeal for a separate rating for a depressive disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of the appeal for a compensable rating for the service-connected right arm and left shoulder scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 6. The criteria for withdrawal of the appeal for a rating higher than 10 percent for the service-connected painful right arm scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 7. The criteria for withdrawal of the appeal for a rating higher than 30 percent for the service-connected right wrist and hand arthrofibrosis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 8. The criteria for withdrawal of the appeal for a rating higher than 20 percent for the service-connected left shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 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. 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. During the September 2019 Board hearing, prior to the promulgation of a decision, the Veteran, with his representative, withdrew his appeals for service connection for a back disorder, for separate ratings for agoraphobia, a depressive disorder and a nervous disorder, and for higher ratings for the right arm and left shoulder scars, painful right arm scar, right wrist and hand arthrofibrosis, and left shoulder disability. The Veteran did so unambiguously and with a full understanding of the consequences. The undersigned clearly identified the withdrawn issues, and the Veteran and his representative both affirmed that the Veteran was requesting a withdrawal as to these issues. In addition, the undersigned discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appealed issues and they are dismissed. REASONS FOR REMAND The remaining issues must be remanded for further development. There are outstanding medical records associated with the Veteran’s Social Security disability benefits claim that must be obtained. Furthermore, the Veteran contends that his service-connected psychiatric disorders and peripheral neuropathy have worsened. Considering his contentions and the 5-year period since his last examinations, new examinations are necessary to assess the current severity of his disabilities. Additionally, he contends that his right shoulder disorder is related to his duties in service and his medical records show that he was diagnosed with right shoulder impingement syndrome by MRI in June 2013. As he has not been afforded a VA examination and medical opinion for his right shoulder, a remand is necessary. Finally, the Veteran contends that he is unemployable due to his service-connected disabilities, including his service-connected psychiatric disabilities. The Board, therefore, will take jurisdiction over his claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue must be remanded as inextricably intertwined with the remanded issues. The Board notes that as the Veteran recently filed VA form 21-8940 in January 2020. The RO mailed the Veteran notice regarding his TDIU claim in February 2020, but no response has been received. The Veteran should complete VA Form 21-4192, Request for Employment Information, to ensure that the Board has all relevant evidence before it to decide the TDIU claim if the issue is returned. The matters are REMANDED for the following action: 1. Obtain the Veteran’s Bay Pines VA Healthcare System records from February 2020 to the present. 2. Obtain the Veteran’s records associated with his Social Security Administration disability claim. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his right shoulder disorder. After a review of the claims file, the examiner must respond to the following: Is it at least as likely as not that the Veteran’s right shoulder disorder began in service or is otherwise related to service, to include his duties as a tactical helicopter search and rescue aircrew swimmer, multi-sensor operator, and multi-mission helicopter aircrewman? The examiner should consider the Veteran’s May and June 2013 VA treatment records (less than one year after the Veteran’s service ended) which showed right shoulder complaints and a diagnosis of right shoulder impingement syndrome. 4. Schedule the Veteran for a VA examination to assess the current severity of his service-connected anxiety and depressive disorders. After examination and review of the claims file, the examiner must comment on the functional impact caused by this disability on the Veteran’s ability to obtain or maintain employment.   5. Schedule the Veteran for a VA examination to assess the current severity of his service-connected right upper extremity peripheral neuropathy. After examination and review of the claims file, the examiner must comment on the functional impact caused by this disability on the Veteran’s ability to obtain or maintain employment. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.