Citation Nr: 20047529 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 17-46 972 DATE: July 16, 2020 ORDER Entitlement to an initial rating higher than 30 percent for other specified trauma and stressor related disorder is dismissed. REMANDED Entitlement to a compensable initial rating for right ankle strain is remanded. FINDING OF FACT On the record at the May 2020 hearing, prior to the promulgation of a decision, the Veteran requested a withdrawal of the appeal of entitlement to an initial rating higher than 30 percent for other specified trauma and stressor related disorder. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to an initial rating higher than 30 percent for other specified trauma and stressor related disorder by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1996 to August 1999 with additional Reserve service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2020. A transcript of that hearing is of record. 1. Entitlement to an initial rating higher than 30 percent for other specified trauma and stressor related disorder 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew the appeal for entitlement to an initial rating higher than 30 percent for other specified trauma and stressor related disorder on the record in the May 5, 2020 hearing. The undersigned presiding Veterans Law Judge explained the repercussions of such withdrawal, and the Veteran expressed his understanding in that regard. As such, the withdrawal of the appeal was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the matter and it is dismissed. REASONS FOR REMAND 1. Entitlement to a compensable initial rating for right ankle strain is remanded. The Veteran testified in his May 2020 hearing that he has pain in his right ankle during periods of flare up such that he avoids walking on uneven surfaces to protect his ankle. This assertion is inconsistent with the July 2017 examination, which found that the Veteran’s pain, weakness, fatigability, or incoordination do not significantly limit the Veteran’s functional ability during flare-ups. Upon remand, a new VA examination should be conducted in which the examiner addresses the Veteran’s report of intense pain during periods of flare up. During a May 2020 hearing, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Auraria Healthcare Center, and any other private facility where the Veteran received treatment for his right ankle. Make two requests for the authorized records from any facility so identified unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements, including the Veteran’s May 2020 hearing testimony of pain during right ankle flare-ups such that he avoids walking on uneven ground. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.