Citation Nr: 21071271 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-40 149 DATE: November 30, 2021 ORDER 1. Entitlement to a rating in excess of 40 percent for left ureter stricture, for purposes of accrued benefits, is withdrawn. 2. Entitlement to a rating in excess of 10 percent for a psychological factor affecting a physical condition, gastritis, for purposes of accrued benefits, is withdrawn. REMANDED Entitlement to an effective date prior to January 27, 2010, for the assignment of a 70 percent for an acquired psychiatric disability, including major depressive disorder, for purposes of accrued benefits, is remanded. Entitlement to an effective date prior to January 27, 2010, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for purposes of accrued benefits, is remanded. FINDING OF FACT 1. In a July 2021 statement, submitted through her attorney, the appellant expressed her desire to withdraw her claims for higher ratings for a left ureter stricture, and for a psychological factor affecting a physical condition, gastritis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 40 percent for left ureter stricture, for purposes of accrued benefits, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for a psychological factor affecting a physical condition, gastric, for purposes of accrued benefits, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to April 1953. The Veteran died in January 2016; the appellant is the Veteran's surviving spouse. These matters return to the Board of Veterans' Appeals (Board) following the issuance of an August 2018 Board remand which directed the RO (Regional Office) to complete additional development. Withdrawal 1. Entitlement to a rating in excess of 40 percent for left ureter stricture 2. Entitlement to a rating in excess of 10 percent for a psychological factor affecting a physical condition, gastritis 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 a July 2021 statement submitted through her attorney, the appellant requested that her claims for a rating in excess of 40 percent for left ureter stricture, and for a rating in excess of 10 percent for a psychological factor affecting a physical condition, gastritis. Hence, here remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disability, including major depressive disorder, is remanded. 2. Entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. A review of the record on appeal reflects that there may be some confusion as to the issues on appeal. Specifically, in a July 2014 rating decision, the Veteran was granted a 70 percent rating for his acquired psychiatric disability, effective January 27, 2010, the date of the claim. In a later rating decision that same month, the Veteran was granted entitlement to TDIU, which was also made effective January 27, 2010. In November 2014, the Veteran's attorney submitted a timely notice of disagreement to both the rating and effective date assigned for his acquired psychiatric disorder. Unfortunately, the Veteran later passed away in January 2016. Therefore, the issues on appeal are for purposes of accrued benefits. While the issue relating to an acquired psychiatric disorder has been previously characterized as "entitlement to a rating in excess of 70 percent for major depression," this is not what the Veteran and his attorney are seeking. Rather, as was set forth in a July 2021 statement, the Veteran is actually seeking an earlier effective date for the 70 percent rating. This argument makes intuitive sense, as the Veteran was already in receipt of TDIU for the entire period on appeal (since January 27, 2010) so, from a practical point of view, the appellant already received the maximum benefits available since the date. Therefore, the issue has been recharacterized and should be evaluated accordingly. Additionally, while the Board previously instructed the RO to obtain records from three physicians, with initials J.A., J.V., and E.R, as well as from the Social Security Administration (SSA), the records from Doctors J.A. and J.V. have not been associated with the claims file, and there is no indication otherwise, that the records could not be added for any reason or that they were even sought. Given the lack of information regarding the seeking of these records by the RO, the Board concludes that there has not been substantial compliance with the previous Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claim of entitlement to an earlier effective date for TDIU is inextricably intertwined with the increased rating claim, thus the Board will defer consideration of the appeal with regard to entitlement to an earlier effective date for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, remand is warranted to ensure that all previous Board remand directives are substantially complied with. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, including mental health treatment records, from January 2009 to January 2016. The RO should specifically make any and all attempts necessary to obtain records from Doctors J.A. and J.V. Should any records not be found, or are not able to be obtained, the RO should make a specific note of this and associate it with the claims file. The RO should contact the appellant and/or her attorney for any information necessary in the seeking of these records. 2. When the above is completed, issue a supplemental statement of the case on the issues of entitlement to an effective date prior to January 27, 2010, for the grant of a 70 percent rating for an acquired psychiatric disorder and for TDIU. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor