Citation Nr: 21076296 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-13 989 DATE: December 23, 2021 ORDER The appeal with respect to the issues of entitlement to service connection for (1) bilateral hearing loss, (2) hypertension, (3) miliaria (claimed as chloracne of the upper thighs, groin, and buttocks), (4) a thyroid disability, (5) a heart disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD), (6) bilateral foot disability, (7) abnormal toenail condition, (8) abnormal skin growth, and (9) erectile dysfunction is dismissed. Entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT In October 2021, prior to the promulgation of an appellate decision, the Board received written notification from the Veteran's representative that the Veteran wished to withdraw his appeal with respect to the issues of entitlement to service connection for (1) bilateral hearing loss, (2) hypertension, (3) miliaria, (4) a thyroid disability, (5) a heart disability (6) bilateral foot disability, (7) abnormal toenail condition, (8) abnormal skin growth, and (9) erectile dysfunction. CONCLUSION OF LAW The criteria for the withdrawal of the appeal with respect to the issues of entitlement to service connection for (1) bilateral hearing loss, (2) hypertension, (3) miliaria, (4) a thyroid disability, (5) a heart disability, (6) bilateral foot disability, (7) abnormal toenail condition, (8) abnormal skin growth, and (9) erectile dysfunction have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1968 to March 1970, to include service in the Republic of Vietnam. His decorations include the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota. In his March 2014 substantive appeal, the Veteran indicated that he wanted to appear at a Board hearing. However, he later withdrew that request in September 2014. 38 C.F.R. § 20.704(e). This case was previously before the Board in June 2019. At that time, the Board denied the Veteran's claims for service connection and remanded the issue of entitlement to an initial disability rating in excess of 70 percent for PTSD to the agency of original jurisdiction (AOJ) for additional development. The Veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims. In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through his attorneys, and representatives from VA General Counsel), thereby vacating the Board's decision as to the claims for service connection and remanding those issues to the Board for readjudication. In the meantime, after taking further action on remand, the AOJ confirmed and continued the prior 70 percent rating for PTSD and returned that matter to the Board. See October 2020 supplemental statement of the case (SSOC). Thereafter, in October 2021, the AOJ granted an earlier effective date of May 17, 1999 for the award of service connection for PTSD and assigned a 70 percent disability from that date. In light of that action, the rating period on appeal for PTSD now encompasses the entire period from May 17, 1999. With respect to entitlement to TDIU, although that issue was denied in an October 2020 rating decision, the Veteran has alleged that his PTSD has prevented him from securing or following substantially gainful employment. See, e.g., October 2021 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Accordingly, TDIU was placed into appellate status as part and parcel of the underlying legacy appeal pertaining to the evaluation of PTSD. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (providing that the issue of entitlement to a TDIU is part of a claim for a higher rating when raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) and remains pending unless the benefit is granted in full for the entire period on appeal). For clarity, the issue of entitlement to TDIU is separately listed on the first page of this decision. Dismissal The appeal with respect to the issues of entitlement to service connection for (1) bilateral hearing loss, (2) hypertension, (3) miliaria, (4) a thyroid disability, (5) a heart disability, (6) bilateral foot disability, (7) abnormal toenail condition, (8) abnormal skin growth, and (9) erectile dysfunction has been withdrawn. 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. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In October 2021, prior to the promulgation of an appellate decision, the Board received written notification from the Veteran's representative that the Veteran wished to withdraw his appeal with respect to his claims for service connection. The correspondence stated, "[The Veteran] hereby withdraws his claims of entitlement to service connection for bilateral hearing loss, hypertension, miliaria, thyroid condition, heart condition, bilateral foot condition, abnormal toe condition, abnormal skin growth, and erectile dysfunction." The correspondence included the Veteran's name and VA file number and identified the issues being withdrawn. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. As the Veteran, through his representative, has withdrawn his appeal for the identified issues, there remain no allegations of error of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the issues of entitlement to service connection for (1) bilateral hearing loss, (2) hypertension, (3) miliaria, (4) a thyroid disability, (5) a heart disability, (6) bilateral foot disability, (7) abnormal toenail condition, (8) abnormal skin growth, and (9) erectile dysfunction, and the appeal of those issues must be dismissed. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. 2. Entitlement to a TDIU is remanded. With respect to the Veteran's initial rating claim for PTSD, as well as the issue of entitlement to TDIU, the Board finds that a remand is needed for additional development. As discussed above, the rating period for PTSD now dates back to May 17, 1999. The Board must properly consider that entire rating period. In that regard, review of the claims file reveals that there are outstanding medical records that are potentially relevant to the adjudication of the issues on appeal. First, the Veteran's VA treatment records reflect that he was receiving counseling from a Vet Center for his PTSD. See May 2012 VA treatment records ("Veteran called [] Vet Center and made appointment with Judy for PTSD intake, as a means to get into a PTSD group for [t]omorrow."); November 2012 ("This past summer went to the Vet Center for treatment"). However, the records of that treatment have not been obtained. Additionally, a November 2012 VA examination report reflects that the Veteran's "first encounter with psychiatric treatment was in 2000 at Walla Walla VA Hospital (Substance Abuse Residential Rehabilitation Program []) during which time he . . . was hospitalized for 3 12 weeks before he prematurely terminated his treatment." Although there are VA treatment records from October 2000 referencing his treatment at that time, it does not appear that any request was made for inpatient treatment records. Both the Vet Center records and inpatient treatment records are very likely relevant to the assessment of the severity of the Veteran's psychiatric disorder, especially as it pertains to the time period prior to May 2012. Accordingly, a remand is required for VA to request these potentially relevant records. Finally, to the extent that the Veteran has received VA treatment for his PTSD since December 2020, any relevant records should be associated with the electronic claims file. These matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from December 2020 to the present. 2. Obtain treatment records from the Vet Center. 3. Obtain inpatient records from the Walla Wall VA Hospital for the Veteran's psychiatric/substance abuse treatment in 2000. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.