Citation Nr: 21002993 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-39 680 DATE: January 19, 2021 ORDER The claim to reopen the previously denied claim of entitlement to service connection for a left inguinal hernia is dismissed. Entitlement to service connection for a left knee disorder, to include as secondary to bilateral plantar fasciitis is dismissed. Entitlement to service connection for a right shoulder disorder is dismissed. REMANDED Entitlement to a compensable evaluation for bilateral plantar fasciitis is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis prior to July 23, 2019 is remanded. FINDINGS OF FACT 1. On the record at the November 2020 hearing, the Veteran withdrew the claim to reopen the previously denied claim of entitlement to service connection for a left inguinal hernia, and the claims of entitlement to service connection for left knee and right shoulder disorders. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim to reopen the previously denied claim of entitlement to service connection for a left inguinal hernia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the claim of entitlement to service connection for a left knee disorder, to include as secondary to bilateral plantar fasciitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of the claim of entitlement to service connection for a right shoulder disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from March 2007 to December 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 VA Disability Benefits Questionnaire (DBQ), the Veteran’s physician noted the Veteran was unable to work due to foot pain. A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, the issue of TDIU is raised by the record, is part and parcel of the higher rating claim, and is properly before the Board. During the pendency of the appeal, an October 2020 rating decision granted entitlement to a TDIU effective July 23, 2019. The October 2020 rating decision did not grant entitlement to a TDIU for the entire period on appeal, and entitlement to a TDIU prior to July 23, 2019 remains before the Board. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2020 and a transcript of the proceeding is of record. Withdrawal of a Substantive Appeal 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a left inguinal hernia is dismissed. 2. Entitlement to service connection for a left knee disorder, to include as secondary to bilateral plantar fasciitis is dismissed. 3. Entitlement to service connection for a right shoulder disorder is dismissed. 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 this case, the Veteran withdrew the service connection claims on appeal orally at the November 2020. The undersigned VLJ ensured the Veteran understood his claims would not be addressed by the Board in this appeal, and that he would need to file new claims if he sought those benefits in the future. The VLJ further explained how the effective date of the award would be impacted by filing a new claim versus continuing the appeal. The Veteran expressly stated he understood and wished to proceed with withdrawing those issues on appeal. The Board finds the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for bilateral plantar fasciitis is remanded. The Board regrets the delay, but remand is necessary to obtain clarification on the nature and severity of the Veteran’s service-connected plantar fasciitis. VA treatment records and the May 2018 VA DBQ document foot diagnoses other than plantar fasciitis. The additional diagnoses include bilateral pes planus, heel spurs, and ankle contracture; left foot suspect tear of the superomedial oblique band of the spring ligament; and right foot spring ligament sprain versus low grade partial thickness tear. See December 2014 VA podiatry notes; see May 2018 VA DBQ. It is unclear from the May 2018 VA DBQ whether the additional diagnoses represent a progression of the underlying service-connected bilateral plantar fasciitis, are part and parcel of the service-connected disability, and whether the examiner can differentiate the symptoms of each diagnosis. 2. Entitlement to a TDIU, to include on an extraschedular basis prior to July 23, 2019, is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) prior to July 23, 2019. However, in a May 2018 examination report, the Veteran’s physician documented the Veteran was unable to work due to foot pain. The Veteran’s claim for TDIU is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral plantar fasciitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. (a.) The examiner is requested to clarify whether the now diagnosed bilateral pes planus, heel spurs, and ankle contracture; left foot suspect tear of the superomedial oblique band of the spring ligament; and right foot spring ligament sprain versus low grade partial thickness tear represents a progression of the underlying service-connected disorder or are part and parcel of the service-connected disorder. (b.) To the extent possible, the examiner is requested to clarify which of the symptoms are attributable to each diagnosis. 3. Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.