Citation Nr: 21014596 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-44 103 DATE: March 15, 2021 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD) has been withdrawn. REMANDED Entitlement to an effective date prior to March 10, 2015 for the award of service connection for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT In February 2020, the Veteran requested a withdrawal of his increased rating claim for PTSD. CONCLUSION OF LAW The criteria for withdrawal of entitlement to an increased rating for PTSD by the Veteran 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 from October 1971 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Entitlement to an increased rating for PTSD 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 In the present case, the Veteran, at his February 2020 hearing, has withdrawn his appeal of the issue of an increased initial rating for PTSD and, hence, there remains no allegations of errors of fact or law for appellate consideration. The Board notes an oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) 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). In the present case, the Board finds that the Veteran’s February 2020 oral withdrawal of his appeal of this issue met the DeLisio requirements. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to an effective date prior to March 10, 2015 for the award of service connection for PTSD is remanded The Veteran seeks an earlier effective date for his award of service connection for PTSD. He asserts he previously filed a claim for this disability, and met the pertinent standards for such a claim; thus, an earlier effective date is warranted. In the present claim, the Veteran was awarded, in a September 2015 rating decision, service connection for PTSD, effective March 10, 2015. The RO determined that the Veteran’s application to reopen his service connection claim for a psychiatric disability was received on that date. Review of the claims file establishes that in a March 2004 rating decision, the Veteran was denied service connection for a nervous disorder, claimed as depression and/or bipolar disorder. In denying the Veteran’s earlier effective date, the RO has stated that the Veteran did not file a timely notice of disagreement regarding the March 2004 rating decision, and it is therefore final. The Board notes, however, that in March 2015, the Veteran’s representative filed a motion alleging clear and unmistakable error in the March 2004 rating decision. To date, the RO has taken no action on this pending claim. In a subsequent February 2020 brief, the Veteran’s representative again noted that no response has been received regarding this March 2015 motion. Adjudication of the Veteran’s earlier effective date claim must therefore be deferred, as this issue is inextricably-intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 2. Entitlement to a TDIU is remanded. The Veteran seeks a total disability rating based on individual unemployability due to service-connected disability (TDIU). He asserts his service-connected disability prevents him from obtaining or maintaining gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In the present case, the Veteran has been granted service connection for a single disability, PTSD, and has been assigned a 70 percent rating. Thus, he meets the schedular criteria for a TDIU. Review of the record indicates that he was last afforded a VA examination and opinion regarding his PTSD and its effect upon his employability in September 2015, over five years ago. Furthermore, he testified at his February 2020 hearing that this disability has increased in severity, adversely affecting his employability. As such, the Board finds that a new examination and opinion is required. The matters are REMANDED for the following action: 1. Adjudicate the Veteran’s claim of clear and unmistakable error in the March 2004 rating decision which denied service connection for a psychiatric disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his sole service-connected disability, PTSD. 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 must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms, along with any social and occupational impairment due to the Veteran’s service-connected PTSD alone. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.