Citation Nr: 20053979 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 12-15 307 DATE: August 14, 2020 ORDER Entitlement to an effective date earlier than April 28, 2010, for the award of non-service-connected pension benefits is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for service-connected anxiety disorder, prior to April 13, 2015, is remanded. Entitlement to a total rating for compensation based on individual unemployability (TDIU), prior to June 13, 2017, is remanded. FINDING OF FACT In July 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran reflecting his wish to withdraw his current appeal for entitlement to an effective date earlier than April 28, 2010, for the award of non-service-connected pension benefits. CONCLUSION OF LAW The criteria for withdrawal of entitlement to an effective date earlier than April 28, 2010, for the award of non-service-connected pension benefits 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 1988 to July 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2009, February 2011, and November 2011 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). This case was before the Board in January 2017 and June 2018. The Veteran’s claims were remanded for additional development by Board decisions in January 2017. In June 2018, the Board denied the following: a rating in excess of 30 percent for anxiety disorder prior to April 13, 2015, entitlement to TDIU prior to June 13, 2017, and entitlement to an effective date for the grant of nonservice-connected pension prior to April 28, 2010 for the grant of nonservice-connected pension prior to April 28, 2010. The Veteran appealed the denials to the Court of Appeals for Veterans Claims, which in May 2019, on the basis of a Joint Motion for Partial Remand, vacated the denials and remanded the matters to the Board for further consideration. Pursuant to the Joint Motion for Partial Remand, these matters are once again before the Board. Entitlement to an effective date earlier than April 28, 2010, for the award of non-service-connected pension benefits is dismissed. In July 2020, the Veteran’s representative submitted a letter expressing that the Veteran wished to withdraw his claim of entitlement to an effective date prior to April 28, 2010 for non-service-connected pension. 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. § 20.205. In the present case, the Veteran has withdrawn his appeal of the claim noted above and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim for entitlement to an effective date prior to April 28, 2010 for non-service-connected pension and the appeal of this matter is dismissed. 38 U.S.C. § 7105(d)(5). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for service-connected anxiety disorder, prior to April 13, 2015, is remanded. 2. Entitlement to TDIU, prior to June 13, 2017, is remanded. In June 2018, the Board denied a rating in excess of 30 percent for anxiety disorder prior to April 13, 2015, and entitlement to TDIU prior to June 13, 2017. The Veteran appealed the denials to the Court of Appeals for Veterans Claims, which in May 2019, on the basis of a Joint Motion for Partial Remand, vacated the denials and remanded the matters to the Board for further consideration. The Joint Motion for Partial Remand included a directive to obtain any outstanding VA treatment records, including records from the Pasco County Vet Center, as VA treatment records show that the Veteran was receiving psychiatric care at that facility. A review of the Veteran’s claims file shows several references to the Veteran’s treatment at the Pasco County Vet Center. An October 2012 VA social work consult reported that the Veteran would be referred to Pasco Vet Center for one on one counseling. A December 2012 VA administrative note reported that a social worker at Pasco County Vet Center was alerted of the Veteran’s suicidal ideation of Veteran on the day that the Veteran had an appointment scheduled at the Vet Center. A January 2014 VA social work consult reported that the treating social worker referred the Veteran to the Pasco County Vet Center for PTSD treatment and was to return in one month for supportive counseling. An August 2014 VA mental health note reported that the Veteran was referred to the Pasco County Vet Center in 2012 and January 2014. Therefore, a remand is warranted to the Agency of Original Jurisdiction to obtain any outstanding VA treatment records, including records from the Pasco County Vet Center. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Ask the Veteran to complete a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and a VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs, for the Pasco County Vet Center to obtain the Veteran’s treatment records from that facility. Vet Center medical records are considered Federal records in VA’s constructive custody. However, these records are not retrievable through CAPRI because the Vet Center provides mental health services that are protected under the Health Insurance Portability and Accountability Act. 4. After any needed authorization is received, obtain copies of the records of the Veteran’s treatment at the Pasco County Vet Center. Document all requests for information as well as all responses in the claims file. 5. Obtain and associate with the claims file all treatment records from the Pasco County Vet Center as well as any other outstanding VA treatment records. Then return the case to the Board. 6. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, 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. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   These claims 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. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, Associate 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.