Citation Nr: 21023588 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-56 807 DATE: April 21, 2021 ORDER Whether new and material evidence was received to reopen a claim for service connection for hypertension has been withdrawn. Service connection for sleep apnea has been withdrawn. Service connection for left lower extremity peripheral neuropathy has been withdrawn. Service connection for right lower extremity peripheral neuropathy has been withdrawn. Service connection for a left knee condition has been withdrawn. REMANDED An initial compensable rating for seborrheic dermatitis is remanded. An initial rating in excess of 30 percent for bilateral pes planus is remanded. An initial rating in excess of 50 percent for PTSD is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. On December 3, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran to withdraw the appeal for the issue of whether new and material evidence was received to reopen the claim for service connection for hypertension. 2. On December 3, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran to withdraw the appeal for the issue of service connection for sleep apnea. 3. On December 3, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran to withdraw the appeal for the issue of service connection for left lower extremity peripheral neuropathy. 4. On December 3, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran to withdraw the appeal for the issue of service connection for right lower extremity peripheral neuropathy. 5. On December 3, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran to withdraw the appeal for the issue of service connection for a left knee condition. CONCLUSIONS OF LAW 1. The criteria for withdrawal of whether new and material evidence was received to reopen a claim for service connection for hypertension by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of service connection for sleep apnea by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of service connection for left lower extremity peripheral neuropathy by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of service connection for right lower extremity peripheral neuropathy by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of service connection for a left knee condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from August 1969 to March 1971. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board notes that the TDIU issue was not expressly raised in prior rating decisions, but was reasonably construed as a request for TDIU based on the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability rating—whether expressly raised by a Veteran or reasonably raised by the record—is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. Withdrawn Issues 1. Whether new and material evidence was received to reopen a claim for service connection for hypertension has been withdrawn. 2. Service connection for sleep apnea has been withdrawn. 3. Service connection for left lower extremity peripheral neuropathy has been withdrawn. 4. Service connection for right lower extremity peripheral neuropathy has been withdrawn. 5. Service connection for a left knee condition 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. During the December 2020 Board hearing, the Veteran orally withdrew the issues of entitlement to service connection for sleep apnea, left lower extremity peripheral neuropathy, right lower extremity peripheral neuropathy, a left knee condition, and whether new and material evidence was received to reopen a claim for service connection for hypertension and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran’s oral withdrawal of these issues was (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). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. An initial compensable rating for seborrheic dermatitis is remanded. 2. An initial rating in excess of 30 percent for bilateral pes planus is remanded. 3. An initial rating in excess of 50 percent for PTSD is remanded. 4. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. At the December 2020 Board hearing, the Veteran reported he has continued to receive VA treatment for the disabilities on appeal. 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. The Veteran also indicated during his December 2020 Board hearing that he received treatment at the Vet Center. A remand is required to allow VA to request these potentially relevant records. During the December 2020 Board hearing, the Veteran asserted that the seborrheic dermatitis, bilateral pes planus, and PTSD disabilities 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 these disabilities. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the rating issues are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2017 to the Present. 2. Obtain the Veteran’s treatment records from the Vet Center locations and periods of treatment as identified by the Veteran. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected seborrheic dermatitis. 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. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral pes planus. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected 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 and social and occupational impairment due to his service-connected psychiatric disorder alone. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.