Citation Nr: 21006807 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-20 853 DATE: February 5, 2021 ORDER Entitlement to service connection for a right shoulder disability is dismissed. REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The appeal of entitlement to service connection for a right shoulder disability was adjudicated in a December 2020 Board decision and has not been appealed by the Veteran as of the date of this decision, and is therefore final. CONCLUSION OF LAW The criteria for dismissal of entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. As part of his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In correspondence dated December 23, 2016, and again on January 9, 2017, the Veteran was properly notified of the date, time and location of the scheduled videoconference hearing set for January 27, 2013 but failed to report for the hearing. VA received a request to cancel the hearing on January 30, 2017. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The Board remanded the issues on appeal for additional development in July 2019 and December 2010. However, the directives having not been substantially complied with, and the matter must again be remanded. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes a December 17, 2020 VA Form 21-0820, Report of General Information, where a VA employee has noted a phone conversation with the Veteran regarding his claims. The phone record, as described in the report, notes Veteran “keeps getting paperwork about appeals and other documents.” Continuing, [the Veteran] “didn’t authorize or request this,” and he “[does not] want to move forward with these claims.” Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of claims must be done in writing, unless the claimant or representative confirms the withdrawal of a claim on record during a hearing. 38 C.F.R. § 20.205 (formerly § 20.204). If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issues withdrawn from the appeal. Id.; see also Kalman v. Principi, 18 Vet. App. 522, 524-25 (2004). The Board finds here that the December 2020 phone record does not meet the legal standards regarding possible withdrawal pursuant to 38 C.F.R. § 20.205 and pertinent case law, and thus does not recognize that particular record as a formal withdrawal of the Veteran’s outstanding claims. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes the Veteran has previously claimed a TDIU but was denied in a December 2008 rating decision for lack of schedular eligibility. A TDIU was inferred in the earlier July 2019 Board decision, and remains on appeal, as discussed in the remand section below. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of SMC is not inferred by the record, and as such will not be discussed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to service connection for a right shoulder disability The Board adjudicated the Veteran’s claim for entitlement to service connection for a right shoulder disability originally in July 2019, remanding for a VA examination and opinion, and then upon return to the Board, the issue was denied on the merits in a December 2020 Board decision. Pursuant to 38 C.F.R. § 20.1100, all Board decisions are final on the date stamped on the face of the decision, which here was December 1, 2020. As of the date of this Board decision, there has been no actions by the Veteran or his representative that would subject the December 2020 decision to further review, and as such, the Board’s December 2020 decision is final and the Board no longer has jurisdiction of this issue. See generally 38 U.S.C. §§ 1975, 1984, chapters 37 and 42. (2012). 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. Accordingly, further appeal of the issue of service connection for a right shoulder disability is moot. The Board therefore does not have jurisdiction to review the appeal, and it is dismissed.   REASONS FOR REMAND The Board remanded the issues of service connection for right ankle disability, an increased rating in excess of 20 percent for a lumbar spine disability, an increased rating in excess of 10 percent for a right knee disability, and an increased rating in excess of 10 percent for right lower extremity radiculopathy in a December 2020 Board remand. As of the date of this Board decision and remand, those issues have yet to be readjudicated by the agency of original jurisdiction. In addition, the Board had previously inferred a TDIU claim for the Veteran, which also has not been readjudicated. As the Board retains jurisdiction of that TDIU claim, it must be remanded again for consideration after the previously remanded issues are readjudicated. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board found in its September 2019 decision and remand that a TDIU was inferred by the Veteran’s record, and thus remanded for a TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that the Veteran receives Social Security Disability compensation. While the Veteran does not currently meet the schedular eligibility requirements of a TDIU, this issue is remanded along with the other issues previously discussed because the inferred TDIU claim is deemed intertwined with the other issues. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: After the previously remanded issues of the December 2020 Board remand are readjudicated, the issue of a TDIU is also to be readjudicated. If any of the determinations remain unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.