Citation Nr: 21072121 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-52 062 DATE: December 2, 2021 ORDER The appeal of the issue of entitlement to service connection for right ear hearing loss has been withdrawn. The appeal of the issue of entitlement to a compensable evaluation for service-connected left ear hearing loss has been withdrawn. REMANDED Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to individual unemployability (TDIU) is remanded. FINDING OF FACT On November 8, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issues of entitlement to service connection for right ear hearing loss and entitlement to a compensable evaluation for service-connected left ear hearing loss is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for right ear hearing loss by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the appeal of the issue of entitlement to a compensable evaluation for service-connected left ear hearing loss by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1967 to December 1968. In an August 2019 decision, the Board reopened and denied the claim for service connection for right ear hearing loss and denied a claim for entitlement to a compensable evaluation for service-connected left ear hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the Veteran and the Secretary of Veterans Affairs requested to vacate the Board's denial of service connection for right ear hearing loss and denial for a compensable rating for left ear hearing loss and to remand the issues for readjudication. In September 2020, the Court granted the JMPR and remanded the matters for action consistent with the JMPR's terms. However, on November 8, 2021, the Veteran's representative submitted a statement withdrawing the claims for entitlement to service connection for right ear hearing loss and for a compensable rating for his service-connected left ear hearing loss. 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. In the present case, the Veteran has withdrawn the appeal of the denial of the claims for service connection for right ear hearing loss and for a compensable evaluation for service-connected left ear hearing loss. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these claims. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD is remanded. In a November 2021 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he had been under a doctor's care and/or hospitalization within the past 12 months at the Oscar G. Johnson VA Medical Center (VAMC). Additionally, in a November 2021 statement, the Veteran's representative stated that updated treatment records from the Oscar G. Johnson VAMC were obtained and were being uploaded concurrent with the submission of this brief. Unfortunately, it appears those records were not uploaded, and the claims file contains no VA treatment records since December 2014. As such, the issues on appeal must be remanded in order to obtain all outstanding VA treatment records. Moreover, as it has been several years since the Veteran was provided a VA examination to determine the current severity of his service-connected PTSD, the Veteran should be scheduled for a VA examination as well. 2. Entitlement to TDIU is remanded. In November 2021, the Veteran submitted an Application for Increased Compensation Based on Unemployability indicating that his PTSD prevents him from securing or following any substantially gainful occupation. Moreover, the Veteran had previously submitted an April 2017 medical record from a private licensed psychologist, in which she determined that the Veteran is not capable of sustaining substantial gainful work activity. The Board thus finds that he has reasonably raised a claim for TDIU throughout the processing of the claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, a remand is required as, at this time, the Veteran does not meet the schedular criteria for TDIU. The Agency of Original Jurisdiction (AOJ) should refer the claim to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Provide the Veteran with notice of VA's duties to notify and assist with regard to substantiating a claim for entitlement a TDIU. Develop the claim as needed. 2. Associate with the claims file all outstanding treatment records from the Oscar G. Johnson VA Medical Center (VAMC) and associated outpatient clinics from December 2014 to the present. 3. Schedule the Veteran for a VA examination to determine the current severity and manifestations of his service-connected PTSD. 4. Refer to the Director of Compensation Service the claim for extra-schedular consideration of TDIU under 38 C.F.R. § 4.16(b). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.