Citation Nr: 21025460 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-28 611 DATE: April 28, 2021 ORDER The appeal seeking entitlement to service connection for degenerative arthritis of the cervical spine is dismissed. The appeal seeking entitlement to service connection for a right shoulder condition is dismissed. The appeal seeking entitlement to service connection for a left shoulder condition is dismissed. The appeal seeking entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for a right foot injury is remanded. FINDINGS OF FACT 1. At the July 2019 hearing, the Appellant withdrew his appeal for service connection for degenerative arthritis of the cervical spine. 2. At the July 2019 hearing, the Appellant withdrew his appeal for service connection for a right shoulder condition. 3. At the July 2019 hearing, the Appellant withdrew his appeal for service connection for a left shoulder condition. 4. At the July 2019 hearing, the Appellant withdrew his appeal for a TDIU. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for degenerative arthritis of the cervical spine by the Appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of service connection for a right shoulder condition by the Appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for withdrawal of service connection for a left shoulder condition by the Appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for withdrawal of TDIU by the Appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served on a period of active duty for training from September 1988 to March 1989. He also served in the Alabama Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior decision on these claims in November 2019. However, following an appeal to the United States Court for Appeals for Veterans Claims (Court), in October 2020 a Joint Motion for Partial Remand (Joint Motion) was entered, vacating portions of the Board’s November 2019 decision. Withdrawal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Appellant or by his or her authorized representative. 38 C.F.R. § 20.204. 1. The appeal seeking entitlement to service connection for degenerative arthritis of the cervical spine. 2. The appeal seeking entitlement to service connection for a right shoulder condition. 3. The appeal seeking entitlement to service connection for a left shoulder condition. 4. The appeal seeking entitlement to a TDIU. In this case, the Appellant withdrew his claim for entitlement to service connection for degenerative arthritis of the cervical spine, a right shoulder condition, a left shoulder condition, and a TDIU on the record at his July 2019 hearing. In the October 2020 Joint Motion, the parties found that the Board provided an inadequate statement of reasons or bases in the November 2019 decision when “it failed to address whether Appellant’s purported claim withdrawals were explicit, unambiguous, and done with full understanding of the consequences of the withdrawal.” Therefore, the Board notes that at the outset of the July 2019 hearing, the undersigned VLJ specifically stated “and prior to going on the record, [the Appellant] indicated that he would like to withdraw the issues of service connection for osteoarthritis of the neck, osteoarthritis of the right shoulder and the left shoulder, and entitlement to a total disability rating based on individual unemployability, is that correct?” To which the Appellant responded “Yes, ma’am.” The undersigned VLJ then asked the Appellant “you understand with respect to the issues that you’re withdrawing today that should you decide to go forward in the future with those issues, that you would have to start all over again?” To which the Appellant again replied “Yes, ma’am.” The undersigned VLJ then thanked the Appellant and proceeded to hold a hearing discussing only the remaining claims at issue. The Board notes that the Appellant’s representative was also present at the hearing and made no objections. Accordingly, the Board finds that the Appellant’s withdrawals were explicit, unambiguous, and done with a full understanding of the consequences of the withdrawal. Additionally, the Board notes that in the October 2020 Joint Motion the Court indicated that the Board should also address the Appellant’s testimony following his withdrawals, specifically for entitlement to a TDIU, that his back condition prevented him from working. The Board has reviewed the Appellant’s testimony and finds that this statement was with regard to gaining service connection for a lower back condition and his Social Security disability benefits. Specifically, the Appellant’s representative asked him “Okay. Tell me why you feel you’re entitled to service-connected compensation because of this incident?” The Appellant responded “Because it happened on the job and I continue to have problems with it today. It’s part of my disability. I’m on Social Security disability now and it’s part of my disability, you know. It prevents me from working. I had a very good job before I had become disabled, so.” The Board does not find these statements to be inconsistent with the Appellant’s request to withdraw his claim for entitlement to a TDIU. Instead, the Board finds that the Appellant argued that his claimed lower back condition prevents him from working only because he had previously been granted Social Security disability benefits for such and was attempting to bolster his claim for service connection for a lower back condition. The Board notes that the standards for the granting of service connection and those for the granting of Social Security disability benefits are entirely distinct from one another. Moreover, the Appellant had already explicitly and unambiguously stated that he understood that in withdrawing his claim for entitlement to a TDIU that if he wanted to again go forward with such in the future that he would have to start the process all over. Accordingly, the Board is not persuaded that this statement indicates that the Veteran did not understand the consequences of his withdrawal of entitlement to a TDIU. As the Appellant has properly withdrawn the appeals with regard to service connection for degenerative arthritis of the cervical spine, a right shoulder condition, a left shoulder condition, and a TDIU on the record at his July 2019 hearing, the Board no longer has appellate jurisdiction and can take no further action on these matters. 38 C.F.R. §§ 20.204, 20.1100(b). REASONS FOR REMAND 1. Entitlement to service connection for a right foot injury is remanded. In the October 2020 Joint Motion, the parties found that the Appellant submitted additional private treatment records following his Board hearing with no waiver for review of this evidence by the Agency of Original Jurisdiction (AOJ). Accordingly, the parties found that the claim must be remanded to “ensure that the newly submitted evidence is provided to the AOJ for review.” The AOJ should also consider and address any other new evidence uploaded into the Appellant’s electronic file, specifically any records from his time with the Alabama National Guard. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Consider and address the new evidence added to the Appellant’s electronic file, specifically private treatment records submitted September 10, 2019, and any additional records from the Alabama National Guard, then readjudicate the Veteran’s claim for service connection for a right foot injury. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate 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.