Citation Nr: 21073467 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-31 118 DATE: December 8, 2021 ORDER Entitlement to an increased disability rating in excess of 10 percent for service-connected Diabetes Mellitus Type 2 is dismissed. REMANDED Entitlement to an increased disability rating in excess of 50 percent for service-connected depressive disorder and anxiety disorder (also claimed as an acquired psychiatric disorder) is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) prior to January 12, 2019 is remanded. FINDING OF FACT In a May 2020 correspondence, as well as during his June 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal for an increased disability rating in excess of 10 percent disabling for service-connected Diabetes Mellitus Type 2. CONCLUSION OF LAW The criteria for dismissal of entitlement to an increased disability rating in excess of 10 percent disabling for service-connected Diabetes Mellitus Type 2 have been 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 November 1964 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from January 2014 and October 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in June 2020 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to an increased disability rating in excess of 10 percent disabling for service-connected Diabetes Mellitus Type 2 is dismissed. During the Veteran's June 2020 Board hearing, he expressed the desire to no longer pursue his increased rating claim for his service-connected diabetes disability. See also May 2020 Letter. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. §§ 19.55, 20.205. In DeLisio v. Shinseki, the Court provided the requirements for a valid oral withdrawal of an appeal or an issue on appeal. The Court held a valid oral withdrawal must be: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Board finds the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Thus, the Board finds the Veteran's withdrawal of this issue at the June 2020 Board hearing meets the requirements of Delisio. Consequently, the issue is dismissed because there remains no allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 50 disabling for service-connected depressive disorder and anxiety disorder (also claimed as an acquired psychiatric disorder) is remanded. 2. Entitlement to total disability based on individual unemployability (TDIU) prior to January 12, 2019 is remanded. Per the Board's December 2019 remand directives, the RO was requested to furnish the Veteran a Supplemental Statement of the Case (SSOC) addressing his claim for entitlement to a TDIU prior to January 12, 2019. Upon review, the Board does not find that said directive was complied with as no SSOC has been issued to date. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, subsequent to the issuance of the August 2019 Statement of the Case (SOC), the Veteran underwent an August 2019 VA examination assessing the current severity level of his service-connected acquired psychiatric disorder; however, the RO did not prepare an SSOC considering this newly received VA-generated evidence. Furthermore, the Veteran has not waived initial AOJ consideration of the evidence. Accordingly, a remand is required for the issuance of an SSOC relative to both claims on appeal, one which complies with the Board's December 2019 remand directives and reflects consideration of the August 2019 VA examination and any other evidence associated with the record since issuance of the August 2019 SOC. See 38 C.F.R. § 20.1304(c). The matters are REMANDED for the following action: 1. The RO must readjudicate the claims for an increased rating in excess of 50 percent for the Veteran's service-connected acquired psychiatric disorder, and entitlement to a TDIU for the period prior to January 12, 2019, with consideration of the additional evidence associated with the claims file since the issuance of the August 2019 SOC, specifically, but not limited to, the August 2019 VA examination. If the benefits sought on appeal remain denied, the Veteran should be provided an SSOC. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.