Citation Nr: 21005909 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-32 211A DATE: February 2, 2021 ORDER The issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for diabetes mellitus is dismissed. The issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for coronary artery disease (CAD) is dismissed. The issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hypertension is dismissed. The issue of entitlement to service connection for right lower extremity neuropathy is dismissed. The issue of entitlement to service connection for left lower extremity neuropathy is dismissed. Entitlement to an additional allowance for dependents is granted. FINDINGS OF FACT 1. In November 2020, prior to the promulgation of a Board of Veterans’ Appeals (Board) decision, the Veteran submitted a written statement expressing that he wished to withdraw from appellate consideration the issues of entitlement to service connection for diabetes mellitus, CAD, hypertension, and bilateral lower extremity neuropathy. 2. Since March 5, 2014, the Veteran has been in receipt of a combined disability rating of at least 30 percent. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677* (Aug. 31, 2020). 2. The criteria for withdrawal of an appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for CAD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677* (Aug. 31, 2020). 3. The criteria for withdrawal of an appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677* (Aug. 31, 2020). 4. The criteria for withdrawal of an appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for right lower extremity neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677* (Aug. 31, 2020). 5. The criteria for withdrawal of an appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for left lower extremity neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677* (Aug. 31, 2020). 6. The criteria for entitlement to an additional allowance for dependents is granted. 38 U.S.C. §§ 1114(c), 1115, 1134, 1135. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to December 1969 in the United States Air Force. These matters come before the Board on appeal from March 2013, October 2014, and November 2015 decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). Jurisdiction of the Veteran’s claims file currently resides with the Manila, the Republic of the Philippines RO. The Veteran’s case was previously before the Board in April 2018. On that occasion, the Board first found that new and material evidence had been received to reopen the issues of service connection for a back disability, a psychiatric disorder, and headaches. The Board then denied service connection for a back disability and benign prostatic hypertrophy, as well as a compensable rating for bilateral hearing loss. The Board also declined to reopen the issues of service connection for sinusitis, chronic obstructive pulmonary disease, blindness, a skin disorder, and a disability manifested by memory loss. Lastly, the Board remanded the issues of: whether new and material evidence had been received to reopen the previously denied claims of entitlement to service connection for diabetes mellitus, CAD and hypertension; entitlement to service connection for a psychiatric disorder, headaches, right lower extremity neuropathy, and left lower extremity neuropathy; entitlement to a total disability rating based on individual unemployability (TDIU); and entitlement to an additional allowance for dependents. Thereafter, in August 2020, a VA RO issued a rating decision granting service connection for anxiety disorder, migraine headaches, and a TDIU. The effective date for the grants of all of these issues was March 5, 2014. The Board finds that these grants constituted a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). In specific regard to the grant of a TDIU, TDIU was not raised as part-and-parcel of an underlying increased rating claim. Rather, the Veteran requested a TDIU as standalone claim based upon heart disabilities. See June 2012 VA Form 21-9840. Accordingly, the Board concludes that entitlement to a TDIU did not remain in appellate status following the August 2020 rating decision. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Withdrawal 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 Veteran submitted a statement in November 2020 explicitly indicating that he wished to withdraw the issues of service connection for diabetes mellitus, CAD, hypertension, right lower extremity neuropathy, and left lower extremity neuropathy from appellate consideration. The November 2020 statement also contained his name and his claims file number. See 38 C.F.R. § 19.55(b)(1); Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677, at *12-13 (Aug. 31, 2020). Thus, the Board concludes that the Veteran has withdrawn these issues and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of (1) whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for diabetes mellitus; (2) whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for CAD; (3) whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hypertension; (4) entitlement to service connection for right lower extremity neuropathy; and (5) entitlement to service connection for left lower extremity neuropathy. They are dismissed. Entitlement to an Additional Allowance for Dependents As an initial matter, the Board notes that a supplemental statement of the case (SSOC) addressing entitlement to an additional allowance for dependents was not issued following the Board’s April 2018 remand. 38 C.F.R. § 19.31(c) mandates that the Agency of Original Jurisdiction (AOJ) issue a SSOC if, pursuant to a remand by the Board, it develops evidence or cures a procedural defect. However, in Scott v. McDonald, the United States Court of Appeals for the Federal Circuit held that a veteran’s interest may be better served by prompt resolution of his or her claims rather than an additional remand to correct a procedural error. 789 F.3d 1375, 1381 (Fed. Cir. 2015). The Board finds Scott to be applicable in the instant case as baseline entitlement to an additional allowance for dependents is a question of law and an additional remand pursuant to 38 C.F.R. § 19.31(c) would constitute adherence to a procedural requirement that has no impact on the underlying merits of the Veteran’s claim. Accordingly, the Board will adjudicate, rather than remand, the Veteran’s claim for entitlement to an additional allowance for dependents. Moving to the merits of the Veteran’s claim, the law provides for the rates of disability compensation and for payment of additional compensation for dependents of veterans who are at least 30 percent disabled.  38 U.S.C. §§ 1114(c), 1115, 1134, 1135. As noted above in the Findings of Fact section, the Veteran has been in receipt of at least a 30 percent disability rating since March 5, 2014. Accordingly, the Board concludes that the Veteran currently has been eligible to receive an additional allowance for dependents since March 5, 2014. Thus, the Veteran’s claim is granted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.