Citation Nr: 21068828 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 19-22 265 DATE: November 15, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to September 22, 2017, and in excess of 50 percent thereafter, for post-traumatic stress disorder (PTSD), is dismissed. Entitlement to a rating greater than 20 percent for diabetes mellitus is dismissed. REMANDED Entitlement to service connection for erectile dysfunction, to include as due to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the right leg and foot, to include as due to diabetes mellitus, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to February 28, 2018 is remanded. FINDING OF FACT In October 2021, prior to the promulgation of a decision in the appeal, the Veteran's attorney withdrew the Veteran's pending claims for increased ratings for PTSD and diabetes mellitus. CONCLUSION OF LAW The criteria for withdrawal of the claims of increased ratings for PTSD and diabetes mellitus are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1966 to February 1969. In June 2011, the Veteran was scheduled for a hearing before a Veterans Law Judge; however, the Veteran waived his right to appear as evidenced in May 2021 written correspondence from the Veteran's attorney. Therefore, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d). The Board also notes that in response to a June 2019 rating decision, the Veteran attempted to appeal his claims for entitlement to TDIU and claims for increased ratings for PTSD and diabetes mellitus in the modernized review system. However, in May 2021 written correspondence, the Board advised the Veteran that his appeal could not be established in the modernized review system since the Veteran's claims concerning PTSD and diabetes mellitus were already on appeal in the legacy system, and the Veteran did not opt-in to the modernized review system within the necessary time period pursuant to 38 C.F.R. §§ 3.2400, 3.2500. As a result, the Veteran was advised that his claims would continue to be decided in the legacy review system. Notwithstanding the above, the Veteran subsequently withdrew his claims for increased ratings for PTSD and diabetes mellitus in an October 2021 written correspondence; however, he did not withdraw his claim concerning entitlement to TDIU. Therefore, the issue of entitlement to TDIU remains on appeal. The Board notes, however, that TDIU is moot beginning February 28, 2018 as the Veteran was in receipt of a 100 percent rating for prostate cancer and SMC at the housebound rate under 38 U.S.C. § 1114 (s). Conversely, for the period prior to February 28, 2018, the issue of TDIU for this period will be remanded given that it is inextricably intertwined with the issues being remanded in the decision herein. Withdrawal of Claims 1. Entitlement to a rating in excess of 30 percent prior to September 22, 2017, and in excess of 50 percent thereafter for PTSD. 2. Entitlement to a rating greater than 20 percent for diabetes mellitus. 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 (d)(5). 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. In October 2021 written correspondence, the Veteran's attorney withdrew his increased rating claims for PTSD and diabetes mellitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those claims and the claims are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as due to diabetes mellitus, is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right leg and foot, to include as due to diabetes mellitus, is remanded. In a December 2016 VA examination, the Veteran was diagnosed with erectile dysfunction; however, the examiner found that the Veteran's erectile dysfunction was less likely proximately caused or aggravated by his diabetes mellitus since the Veteran's erectile dysfunction diagnosis preceded the Veteran's diagnosis of diabetes mellitus. The examiner also found that the Veteran's peripheral neuropathy of the right leg and foot was also less likely than not caused or aggravated by diabetes mellitus based on the same reasoning. The Board notes, however, that in October 2021 written correspondence, the Veteran's attorney contended that the VA medical opinion was flawed since the examiner assumed that the Veteran could not have had diabetes prior to his actual date of diagnosis. In addition, the attorney referenced medical literature that suggests erectile dysfunction may be caused by prostate cancer and/or PTSD, which the Veteran is service connected for. Since the examiner did not have an opportunity to review the literature provided by the attorney, the Board finds that remand is warranted to obtain a new opinion as to the new theories of entitlement. The Board also finds that the attorney's argument concerning the Veteran's date of diagnosis for diabetes and the relationship between his erectile dysfunction and neuropathy warrants further development and/or clarification. 3. Entitlement to a TDIU prior to February 28, 2018 is remanded. As the issue of a TDIU is inextricably intertwined with the issues being remanded herein, adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's erectile dysfunction and neuropathy of the right leg and foot. The record must be made available to and must be reviewed by the examiner. After review of the record, the examiner should provide an opinion as to the following: ERECTILE DYSFUNCTION: Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was proximately caused or aggravated by service-connected diabetes mellitus, prostate cancer, and/or PTSD. NEUROPATHY: Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right leg and foot neuropathy was proximately caused or aggravated by service-connected diabetes mellitus. The examiner should comment and explain the significance of the dates of diagnosis between the Veteran's diabetes mellitus and the Veteran's erectile dysfunction and neuropathy of the right leg and foot. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. The AOJ must review the examination reports and all opinions to ensure they are complete, adequate, and comply with the Board's specific remand directives. 4. Then, readjudicate the claims, to include entitlement to TDIU prior to February 28, 2018. Refer the TDIU claim to the Director of Compensation Services if warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.