Citation Nr: 21063350 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-36 947 DATE: October 14, 2021 ORDER The appeal as to the issue of a rating in excess of 40 percent for lumbar spine spondylosis is dismissed. The appeal as to the issue of a rating in excess of 30 percent for bilateral pes planus is dismissed. The appeal as to entitlement to a total rating based on individual unemployability (TDIU) is dismissed as moot. REMANDED A rating in excess of 70 percent for posttraumatic stress disorder (PTSD), for the period prior to December 10, 2015, is remanded. FINDINGS OF FACT 1. In a statement dated October 3, 2017, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran that he sought to withdraw his appeal as to the issue of a rating in excess of 40 percent for lumbar spine spondylosis. 2. In a statement dated October 3, 2017, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran that he sought to withdraw his appeal as to the issue of a rating in excess of 30 percent for bilateral pes planus. 3. In an October 2017 rating decision, TDIU was granted effective July 14, 2011, when the claim was filed, until December 10, 2015, when he was granted a schedular 100 percent rating for his PTSD. 4. Effective July 14, 2011, the Veteran was awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(s). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of a rating in excess of 40 percent for lumbar spine spondylosis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal as to the issue of a rating in excess of 30 percent for bilateral pes planus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The appeal as to the issue of entitlement to a TDIU is moot. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty served in the Army from March 1999 to July 2006 and the Coast Guard from May 2007 to July 2011. These matters come before the Board of Veterans' Appeals (Board) from an October 2012 rating decision. During the pendency of the appeal, the Veteran's PTSD was increased to 100 percent effective December 10, 2015. As the Veteran is presumed to be seeking the maximum allowable benefit, and the maximum benefit has not yet been awarded, for the entire period on appeal, the claim is still in controversy and on appeal. AB v. Brown, 6 Vet. App. 35 (1993). However, the award of a 100 percent rating effective December 10, 2015, does constitute a full grant of benefits sought. As such, the issue of entitlement to an increased rating for PTSD has been recharacterized to reflect entitlement to an increased rating prior to December 10, 2015. In July 2021, the Veteran was scheduled for a hearing before the Board but did not appear for the hearing. In an appellate brief submitted in September 2021, the Veteran's representative did not offer a statement of good cause as to why the Veteran missed the hearing and did not request another hearing. Therefore, the hearing request has been deemed withdrawn. 38 C.F.R. § 20.702(d). Lumbar Spine and Pes Planus A Veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 19.55. When a Veteran does so, the withdrawal effectively creates a situation in which an allegation of error, fact, or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55. Here, in a statement dated October 3, 2017, the Veteran requested his appeal be withdrawn as to the issues of a rating in excess of 40 percent for lumbar spine spondylosis and a rating in excess of 30 percent for bilateral pes planus. In view of the Veteran's expressed desire, the Board concludes that his intent was to withdraw these issues, and further action with regard to these issues is not appropriate. Accordingly, the Board no longer has jurisdiction over these issues and, as such, must dismiss the appeal as to these issues. TDIU A separate TDIU rating cannot be awarded based on one service-connected disability if the Veteran is already receiving a 100 percent schedular rating for that disorder. Buie v. Shinseki, 24 Vet. App. 242 (2010). As noted above, in an October 2017 rating decision, TDIU was granted effective July 14, 2011, when the claim was filed, until December 10, 2015, when the Veteran was granted a schedular 100 percent rating for his PTSD. Prior to December 10, 2015, this represents a full grant of the benefit sought. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). From December 10, 2015, the Veteran is in receipt of a schedular 100 percent rating for his PTSD. The receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. A TDIU rating may still form the basis for assignment of SMC under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, SMC under 38 U.S.C. § 1114(s) was granted effective July 14, 2011. Accordingly, as the maximum benefits were granted, TDIU is moot. REASONS FOR REMAND The Board finds that further development is necessary regarding the claim of a rating in excess of 70 percent for PTSD, for the period prior to December 10, 2015. In December 2015, the Veteran underwent a VA examination regarding his claim of an increased rating for PTSD. The examiner documented that the Veteran's psychiatric symptoms had worsened since his last VA examination in 2013 noting that the Veteran was even more socially withdrawn and isolated to the point that his behavior can reasonably be described as agoraphobic. The Veteran reported that he had been attending community college classes and stopped in approximately the fall 2014 due to his psychiatric symptoms. The Veteran also reported that he went to the "Veteran Center" for mental health therapy for approximately five or six sessions in 2014; however, the Veteran did not specify at which "Veteran Center" he attended mental health therapy. He stated that he discontinued mental health therapy due to confidentiality concerns. A review of the evidence of record indicates that limited treatment records from 2014 have been associated with the claims file and does not indicate any mental health treatment records from 2014. Therefore, the Board finds that the evidence indicates that there are outstanding treatment records relevant to the Veteran's claim, particularly regarding increased psychiatric symptoms and mental health therapy in approximately 2014. Accordingly, a remand is necessary to allow VA to obtain these records. The matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify the VA facilities at which he has received treatment. The records of any such treatment that are not already of record, including mental health treatment in 2014, should be sought. 2. Ask the Veteran to identify any private medical providers who may have treated the Veteran for his PTSD. Ask the Veteran to complete a VA Form 21-4142 for each medical provider so identified. Make two requests for the authorized records from any identified medical provider unless it is clear after the first request that a second request would be futile. 3. Following the completion of the above, readjudicate the issue of a rating in excess of 70 percent for PTSD, for the period prior to December 10, 2015, in light of all evidence and decisions of record. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.