Citation Nr: 21002720 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-24 524 DATE: January 14, 2021 ORDER The issue of entitlement to an evaluation in excess of 70 percent disabling for service-connected posttraumatic stress disorder (PTSD) with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD) is dismissed without prejudice. The issue of entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for Wernicke’s encephalopathy with urinary impairment associated with PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD) is dismissed without prejudice. The issue of entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for bowel impairment (constipation) associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected right lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. The issue of entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for right lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for service-connected left lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. The issue of entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for left lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. The issue of entitlement to an initial compensable evaluation for service-connected impairment of swallowing associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. The issue of entitlement to an effective date earlier than August 14, 2017, for the impairment of swallowing associated with Wernicke’s encephalopathy with urinary impairment is dismissed without prejudice. REMANDED The issue of entitlement to an earlier effective date for the increased evaluation for service-connected PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD) is remanded. The issue of entitlement to an initial evaluation in excess of 20 percent disabling for service-connected Wernicke’s encephalopathy with urinary impairment associated with PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD) is remanded. The issue of entitlement to an initial compensable evaluation for service-connected bowel impairment (constipation) associated with Wernicke’s encephalopathy with urinary impairment is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 14, 2017, is remanded. FINDING OF FACT In December 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran with his authorized representative, that a withdrawal of the issues listed below under the heading “Withdrawal” is requested. CONCLUSION OF LAW The criteria for withdrawal of the issues listed below under the heading “Withdrawal” have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to March 2004. In December 2020, the Veteran and M.A.M. testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. Withdrawal 1. Entitlement to an evaluation in excess of 70 percent disabling for service-connected PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD). 2. Entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for Wernicke’s encephalopathy with urinary impairment associated with PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD). 3. Entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for bowel impairment (constipation) associated with Wernicke’s encephalopathy with urinary impairment. 4. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected right lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment. 5. Entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for right lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment. 6. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected left lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment. 7. Entitlement to an effective date earlier than August 14, 2017, for the grant of service connection for left lower extremity impairment associated with Wernicke’s encephalopathy with urinary impairment. 8. Entitlement to an initial compensable evaluation for service-connected impairment of swallowing associated with Wernicke’s encephalopathy with urinary impairment. 9. Entitlement to an effective date earlier than August 14, 2017, for the impairment of swallowing associated with Wernicke’s encephalopathy with urinary impairment. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, that is the Veteran, with his authorized representative, has withdrawn the issues listed above under the heading “Withdrawal.” Hence, there remain no allegations of errors of fact or law for appellate consideration. The withdrawal was made on the record at the December 2020 videoconference hearing. The oral withdrawal 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); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The transcript of the hearing serves as written documentation of the withdrawal on the record. Accordingly, the Board does not have jurisdiction to review the appeal of the above cited issues and these issues are dismissed without prejudice. REASONS FOR REMAND 1. Entitlement to an earlier effective date for the increased evaluation for service-connected PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD). In a February 2017 rating decision, the RO, inter alia, increased the Veteran’s disability evaluation for his service-connected PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD) from 50 percent disabling to 70 percent disabling, effective January 12, 2017. Later, in a July 2017 rating decision, the RO continued the 70 percent evaluation, and the Veteran submitted a notice of disagreement (NOD) in October 2017. The NOD was submitted within a year of both rating decisions. While the cover letter accompanying the NOD states that it was in response to the July 2017 rating decision, the comments on the NOD form state: “Past and current medical treatment records support a granting of service connection, earlier effective date, and/or a higher evaluation of these disabilities.” (Emphasis added). Given this broad language, the Board interprets this NOD as a disagreement with the still pending February 2017 rating decision that assigned an effective date for the Veteran’s increased evaluation. Accordingly, a Statement of the Case (SOC) should be provided as to this issue. In such a situation, the Board remands, rather than refers, the issue to the attention of the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 19.9 (c); Manlicon v. West, 12 Vet. App. 238 (1999). Therefore, this issue is remanded for the purpose of issuing an SOC. 2. Entitlement to an initial evaluation in excess of 20 percent disabling for service-connected Wernicke’s encephalopathy with urinary impairment associated with PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD). 3. Entitlement to an initial compensable evaluation for service-connected bowel impairment (constipation) associated with Wernicke’s encephalopathy with urinary impairment. The Board finds that new VA examinations are needed in order to address the current severity of the remaining disabilities on appeal. At the December 2020 videoconference hearing the Veteran testified that his disabilities have worsened. Based on this testimony, the Board finds that new VA examinations are needed. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, these issues are remanded in order to afford the Veteran the opportunity to be examined. 4. Entitlement to a TDIU prior to August 14, 2017. The issue of entitlement to a TDIU prior to August 14, 2017, may be impacted by issues remanded herein. Accordingly, it is also remanded. The matters are REMANDED for the following action: 1. Furnish a SOC as to the issue of entitlement to an earlier effective date for the increased evaluation for service-connected PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD). Only if the Veteran perfects an appeal should the issue be certified to the Board following completion of any necessary development. 2. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 3. Upon completion of the above, schedule the Veteran for VA examinations (or telehealth interviews, if an in-person examination is not feasible) to determine the current severity of the following service-connected disabilities: (a) Wernicke’s encephalopathy with urinary impairment associated with PTSD with depressed mood and alcohol abuse disorder (previously evaluated as anxiety disorder with PTSD); and (b) bowel impairment (constipation) associated with Wernicke’s encephalopathy with urinary impairment. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided.   4. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.