Citation Nr: 21070403 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-09 377 DATE: November 23, 2021 ORDER The appeal pertaining to the issue of entitlement to service connection for recurrent ingrown toenails is dismissed. The appeal pertaining to the issue of entitlement to an effective date prior to July 7, 2017, for the award of service connection for Ewing's sarcoma is dismissed. REMANDED Entitlement to an initial rating in excess of 10 percent for a lumbosacral strain is remanded. Entitlement to an initial compensable rating for tension headaches is remanded. FINDING OF FACT On the record at the July 2021 Board hearing and in a written statement received later the same month, prior to the promulgation of a decision in this appeal, the appellant withdrew her appeal pertaining to the issues of entitlement to service connection for recurrent ingrown toenails and an effective date prior to July 7, 2017, for the award of service connection for Ewing's sarcoma. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for recurrent ingrown toenails by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an effective date prior to July 7, 2017, for the award of service connection for Ewing's sarcoma by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 2005 to January 2015. He passed away in October 2020 and the appellant is his surviving spouse, who, in November 2020, was accepted as the substitute claimant for the purpose of processing this appeal to its completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2015 and December 2017 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2021, the appellant testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, she waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the December 2016 statement of the case addressing the increased rating and service connection claims. 38 C.F.R. § 20.1305(c). Additionally, later the same month, she submitted additional evidence for consideration in her appeal. 1. Entitlement to service connection for recurrent ingrown toenails. 2. Entitlement to an effective date prior to July 7, 2017, for the award of service connection for Ewing's sarcoma. 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, on the record at the July 2021 Board hearing and in a written statement received later the same month, prior to the promulgation of a decision in the appeal, the appellant withdrew her appeal pertaining to the issues of entitlement to service connection for recurrent ingrown toenails and an effective date prior to July 7, 2017, for the award of service connection for Ewing's sarcoma. In this regard, the Board finds that such 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); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Consequently, there remain no allegations of errors of fact or law for appellate consideration with regard to such issues. Accordingly, the Board does not have jurisdiction to review the appeal of the aforementioned issues, and they are dismissed. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 10 percent for a lumbosacral strain. 4. Entitlement to an initial compensable rating for tension headaches. A review of the record reflects that, in the year prior to his death, the Veteran was awarded disability benefits from the Social Security Administration (SSA) with a disability onset date in January 2020. Consequently, as such records may be relevant to the instant claims, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is required to obtain Social Security records when those records are potentially relevant to the claim on appeal). The matters are REMANDED for the following action: Obtain the Veteran's complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records, from such agency. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.