Citation Nr: 21073294 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-31 444 DATE: December 8, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 16, 2012, is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1968 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for PTSD and assigned a 30 percent disability rating, effective September 21, 2011. These matters were before the Board in April 2018, at which time they were remanded for additional evidentiary development. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. In a May 2019 report of general information, it is noted that the Veteran called to cancel his appointment in June 2019 for PTSD. He no longer wished to increase his rating for PTSD and was satisfied with his overall rating of 100 percent. The Board notes that a verbal withdrawal of an appeal is effective "only where it is (1) 'explicit'; (2) 'unambiguous'; and (3) 'done with a full understanding of the consequences of such action on the part of the [veteran].'" See Acree v. O'Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). After a review of the evidence, including the May 2019 report of general information, the Board finds that there has been no withdrawal of the issues on appeal that was explicit, unambiguous, and done with a full understanding of the consequences of such action. Accordingly, the Board finds that a remand is warranted in order for the Veteran or his representative to submit an independent written statement confirming the Veteran's withdrawal and indicating that he fully understands the consequences of the withdrawal. If a withdrawal is not received by the Veteran within sixty (60) days, the issues will remain in appellate status. Moreover, if the Veteran does not withdraw the issues, the Board finds that a new medical opinion and his treatment records from the Vet Center should be obtained on remand. In this regard, the only VA examination of record was performed in December 2011 under the previous DSM-IV standards and the Veteran's complete VA treatment records, including records from the Vet Center therapy, have not been obtained and associated with the claims file. See 38 C.F.R. § 4.130. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 16, 2012, is remanded. In a March 2017 rating decision, the RO granted TDIU, effective May 16, 2012. However, from September 21, 2011, the Veteran had a pending claim for an increased rating for his service-connected PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, a July 2014 letter from R.A., Social Worker, indicated that his mental issues, in part, caused impairment to his employment. Accordingly, the issue of entitlement to a TDIU is before the Board prior to May 16, 2012. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU."). Accordingly, the Board will defer adjudication of this issue at this time given that it is intertwined with the present increased rating claim. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative in writing and ask the Veteran to submit an independent written statement confirming or denying a withdrawal of the appealed claims of an increased rating for PTSD and/or entitlement to a TDIU prior to May 16, 2012. In the letter it must be explained that if he confirms the withdrawal, he fully understands that he will no longer be able to continue his claims for an increased rating for his PTSD and an earlier effective date for his TDIU and that any later claim will be subject to a later effective date rather than the claim date for the instant appeal. If the Veteran does not respond within sixty days (60), then proceed as though the claims of entitlement to an increased rating for PTSD and a TDIU prior to May 16, 2012, remain on appeal. 2. After completion of #1, obtain and associate with the claims file the Veteran's updated VA treatment records, including mental health records, from November 2018 to the present. 3. After completion of #1, obtain and associate with the claims file the Veteran's VA Vet Center treatment records. 4. After completion of #1, #2, and #3, forward the claims file, including a copy of this remand, to a VA examiner to assess the severity of the Veteran's PTSD pursuant to the DSM-V standards. The claims file, including a copy of this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner should discuss the severity, symptoms, and social and occupational impairment associated with the Veteran's service-connected PTSD. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should review the Veteran's treatment records, December 2011 VA examination, July 2014 letter from R.A., and December 2015 statement by G.S, D.O. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page) If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.