Citation Nr: 21073705 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-49 989A DATE: December 10, 2021 ORDER The appeal for an increased rating for service-connected erectile dysfunction (ED) is dismissed. REMANDED Entitlement to an increased rating for service-connected cluster headaches, rated as noncompensable prior to November 13, 2019 and as 30 percent disabling from that date, is remanded. Entitlement to an increased compensable rating for service-connected onychomycosis is remanded. Entitlement to an increased rating for service-connected unspecified depressive disorder with anxious distress, rated as 50 percent disabling from August 6, 2014, and as 70 percent disabling from October 13, 2021, is remanded. FINDING OF FACT On August 20, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for an increased rating for ED is requested. CONCLUSION OF LAW The criteria for dismissal of the appeal for an increased rating for ED are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2003 to October 2011. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in April 2015, that granted an increased 30 percent rating for service-connected unspecified depressive disorder, effective August 6, 2014, and denied increased ratings for cluster headaches, onychomycosis, and ED. The Veteran testified before the undersigned Veterans Law Judge at an August 2021 hearing; a transcript of the hearing is of record. In an October 2016 rating decision, the AOJ granted an increased 50 percent rating for unspecified depressive disorder, effective August 6, 2014. In a February 2020 rating decision, the AOJ granted an increased 30 percent rating for cluster headaches, effective November 13, 2019. In an October 2021 rating decision, the AOJ granted an increased 70 percent rating for service-connected unspecified depressive disorder with anxious distress, effective October 13, 2021. 1. Increased rating for ED At the August 2021 Board hearing, the Veteran explicitly withdrew his appeal as to the issue of entitlement to an increased rating for service-connected ED. The Board finds that his oral withdrawal of this appeal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). 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, the appellant has withdrawn his appeal for an increased rating for ED and, hence, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 2. Increased rating for cluster headaches is remanded. 3. Increased rating for onychomycosis is remanded. At the August 2021 Board hearing, the Veteran asserted that his service-connected cluster headaches and onychomycosis have increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of cluster headaches and onychomycosis. Moreover, the VA headache examiner should be asked to review the claims file and provide a retrospective opinion as to the severity of the service-connected cluster headaches since August 2014, and as to when the disability reached its current level of severity, or explain why such an opinion cannot be given. In this regard, the Board notes that the examiner who performed the November 2019 VA headache examination specifically stated that VA treatment records dated from 2014 to the present were not in the claims file at the time of the examination, although the Veteran received ongoing VA treatment for headaches during this period. Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. On remand, the AOJ should obtain updated VA treatment records. 4. Increased rating for unspecified depressive disorder with anxious distress is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. During the August 2021 Board hearing, the Veteran testified that he receives therapy at the Macon VA clinic twice per month. It does not appear that all of his VA mental health treatment records are on file. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. At the August 2021 Board hearing, the Veteran asserted that his service-connected depressive disorder has increased in severity since he was last examined by VA and requested another VA examination. Since the Board hearing, a VA mental disorders examination was conducted on October 13, 2021, but this examination report has not yet been considered by the AOJ in the context of the instant appeal. The Board notes that the effective date for an increased or staged rating depends on when the change in disability level can be "ascertained" and should not be "assigned mechanically" as of the date of an examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cluster headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should be asked to review the claims file and provide a retrospective VA medical opinion concerning the severity of the Veteran's service-connected cluster headaches during the period from August 2014 to the November 2019 VA examination, and as to when the disability reached its current level of severity. If the requested opinion(s) cannot be provided, the examiner should explain why this is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected onychomycosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. The AOJ should readjudicate the claims on appeal with consideration of all of the evidence associated with the file since the February 2020 supplemental statement of the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.