Citation Nr: 20030108 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 14-41 795 DATE: April 29, 2020 ORDER The issues of entitlement to a rating in excess of 10 percent for service-connected residuals, shell fragment wound (SFW), right hand, and entitlement to a compensable rating for service-connected scars, right hand, residual SFW, are dismissed. REMANDED The claim for a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT During his hearing, held in January 2018, prior to the promulgation of a decision in the appeal, the Veteran testified that he desired to withdraw the issues of entitlement to a rating in excess of 10 percent for service-connected residuals, shell fragment wound (SFW), right hand, and entitlement to a compensable rating for service-connected scars, right hand, residual SFW. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issues of entitlement to a rating in excess of 10 percent for service-connected residuals, SFW, right hand, and entitlement to a compensable rating for service-connected scars, right hand, residual SFW, by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2018, the Veteran was afforded a hearing at the RO before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102 (b). In January 2019, the Board dismissed the claims for a rating in excess of 10 percent for service-connected residuals, SFW, right hand, and a compensable rating for service-connected scars, right hand, residual SFW, and denied the claims for a rating in excess of 30 percent for service-connected PTSD and a TDIU. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In October 2019, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s January 2019 decision. In October 2019, the Court issued an Order vacating the January 2019 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). The JMR makes clear that the Board’s January 2019 decision remains in effect as to all other issues that were adjudicated in that decision. Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). In February 2020, additional evidence was received that has not been reviewed by the Agency of Original Jurisdiction (AOJ). However, that evidence is accompanied by a waiver of AOJ review. See 38 C.F.R. §§ 20.1304 (c). 1. Dismissal. 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. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. A review of the claims folder shows that the Veteran initiated an appeal on the issues of entitlement to a rating in excess of 10 percent for service-connected residuals, shell fragment wound (SFW), right hand, and entitlement to a compensable rating for service-connected scars, right hand, residual shell fragment wound. The Veteran has since indicated that he desires to withdraw his appeal as to these issues. Specifically, during his hearing, held in January 2018, the Veteran testified that he desired to withdraw the issues of entitlement to a rating in excess of 10 percent for service-connected residuals, SFW, right hand, and entitlement to a compensable rating for service-connected scars, right hand, residual SFW. This acknowledgement on the record followed a full discussion prior to going on the record. It is also noted that the discussion that it was the Veteran’s desire to withdraw these issues was initiated by the Veteran’s representative. The JMR shows that it was agreed that the Board should have discussed whether or not the criteria for a valid withdrawal of the claims were met. Citing Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Of note, it was not actually alleged in the JMR that the Veteran did not wish to withdraw these issues. As such, to be clear, the Board finds that the Veteran’s withdrawal of the issues noted above was “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Acree; see also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Board first notes that the JMR does not state that the Veteran is now asserting that he did not, in fact, intend to withdraw these issues. The Veteran’s positive response to the VLJ’s questions during his hearing regarding the issues being withdrawn makes the withdraw “explicit and unambiguous.” Second, although the discussion on the record was brief, it was only intended to memorialize the discussion that was held prior to going on the record, which was clearly documented in hearing notes, and initiated by the Veteran’s representative that the Veteran wished to withdraw these issues. There was no misunderstanding or objection once the Board went on the record and asked if the Veteran did in fact wish to withdraw these issues as he unmistakably raised prior to going on the record. In addition, no testimony was offered, or taken, at the Board hearing on these issues. In summary, it was clear that the Veteran fully understood that he was no longer pursuing the claims for a rating in excess of 10 percent for service-connected residuals, SFW, right hand, and for a compensable rating for service-connected scars, right hand, residual SFW. Id. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal on the issues listed above. They are dismissed. REASONS FOR REMAND The Veteran asserts that he is entitled to an increased rating for his service-connected PTSD. During his hearing, held in January 2018, he testified that he experiences symptoms that include depression, daily anger, and a lack of motivation, and that in the last year he has had thoughts of suicide three or four times. He said that he sleeps four to five hours per night. The Veteran has submitted three lay statements, dated between January and February of 2018, in which the authors assert that the Veteran has psychiatric symptoms that include depression, a lack of energy, social withdrawal, mood swings, that he is early irritated and angered, and that he has a lack of passion for life. Several VA examinations have been conducted during the course of the appeal. The Veteran has since submitted the report from a private psychiatric evaluation which does not appear to be congruent with the findings on the VA examinations on in the treatment records. As such, the Board will remand so that an examination may by conducted. The matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2019 to the present. 2. Schedule the Veteran for a VA examination of his PTSD. In so doing, the examiner should identify any functional limitations to employment which are caused by the PTSD. The examiner should also review the private psychiatric evaluations from Dr. Teller (dated 3/15/2018) and from Dr. Rubin (dated 3/14/20) MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.