Citation Nr: 21031421 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-62 125A DATE: May 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for painful c-section scar has been withdrawn. Entitlement to an effective date earlier than September 4, 2015, for the award of service connection for painful c-section scar is denied. REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder with obsessive compulsive features is remanded. FINDINGS OF FACT 1. During the March 2021 Board hearing, the Veteran requested a withdrawal of her appeal for an increased rating for service-connected c-section scar. 2. The Veteran was denied entitlement to service connection for a c-section scar in an unappealed June 2014 rating decision. 3. The Veteran filed a claim to reopen the previously denied claim of entitlement to service connection for a c-section scar that was received by VA on September 4, 2015. 4. Prior to September 4, 2015, there was no pending formal claim, informal claim, or a written intent to file a claim to reopen the previously denied claim of entitlement to service connection for a c-section scar. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for painful c-section scar by the Veteran have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 2. The criteria for an effective date earlier than September 4, 2015, for the award of service connection for painful c-section scar have not been met. 38 U.S.C. §§ 5101, 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.114, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 2000 to April 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. 1. Entitlement to a rating in excess of 10 percent for painful c-section scar is dismissed. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 requested to withdraw her appeal of the claim for increased rating for painful c-section scar at the March 2021 Board hearing. See Hearing Transcript, pp. 2-3. Following the Veteran's verbal request, the undersigned explained that the Veteran would not receive a decision on this issue and that the decision of the RO would become final. The Veteran then confirmed her desire to withdraw this issue from appellate consideration. As such, the Board finds that the Veteran's verbal withdrawal was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) In sum, the Veteran has properly withdrawn the issue of entitlement to an increased rating to painful c-section scar 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 for increased rating and it is dismissed. 2. Entitlement to an effective date earlier than September 4, 2015, for the award of service connection for painful c-section scar is denied. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The record reflects that the Veteran initially sought service connection for c-section scar in July 2013. A May 2014 compensation and pension (C&P) exam inquiry noted that a scar examination was requested. A subsequent June 2014 C&P exam inquiry noted that the Veteran canceled the examination. A June 2014 rating decision denied entitlement to service connection for a c-section scar based on lack of evidence of current disability. The rating decision stated that Veteran failed to report for a scheduled examination, but if the Veteran could show good cause for her failure to report, the RO would reschedule the examination and the claim would be reconsidered. The record reflects that a June 12, 2014, letter was mailed to the Veteran notifying her of the denial and informing her of her appellate rights. On September 4, 2015, a Report of General Information indicated that the Veteran wished to file a claim for reconsideration based on new and material evidence. The Veteran claims that the effective date of service connection for her c-section scar should be July 11, 2013, the date of her original claim for service connection. In support of her claim, she argues that she was never notified of her initial VA scars examination. She further argues that she only received the first page of the June 12, 2014, notice letter and so, was unaware of her appellate rights. There is a presumption of regularity in the official acts of public officers and, in the absence of clear evidence to the contrary, courts will presume that they have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). A statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet. App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Instead, the presumption of regularity may be rebutted by the submission of "clear evidence to the contrary." Warfield v. Gober, 10 Vet. App. 483, 486 (1997). In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). In this case, the record is unclear as to how the Veteran was notified of her scheduled VA examination. However, the June 2014 rating decision notified the Veteran that she had the opportunity to show good cause in order to schedule a new examination. The accompanying notice letter indicates that the Veteran was provided notice of her right to appeal the decision. The Veteran does not dispute that she did not receive the rating decision or the notice letter. Although she disputes receipt of the entire notice letter, she has not provided "clear evidence" sufficient to rebut the presumption of regularity. See Warfield, 10 Vet. App. at 486. As noted above, the Veteran's statement, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Ashley, 2 Vet. App. at 65-65. Here, the Veteran did not submit a request for reconsideration prior to September 4, 2015, over a year after she received the June 2014 rating decision and notice letter. Nor did she submit any evidence or argument regarding her claim prior to that date. Consequently, the June 2014 rating decision became final. Therefore, there is no legal basis for an effective date earlier than September 4, 2015. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Board is sympathetic to the Veteran's claim. However, the pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by that authority. Pursuant to that authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection earlier than September 4, 2015, can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400 (b)(2)(i). REASONS FOR REMAND Entitlement to a rating in excess of 70 percent PTSD with major depressive disorder with obsessive compulsive features is remanded. The Veteran was most recently afforded a psychiatric examination in October 2016. During the March 2021 Board hearing, the Veteran testified that the symptoms of her psychiatric disability had worsened since her last VA examination. As the above evidence indicates a possible worsening of that the Veteran's psychiatric disability since her last VA examination, an additional examination should be afforded to gauge the current level of severity of her disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a psychologist or psychiatrist to determine the current level of severity of all impairment resulting from her service-connected PTSD with major depressive disorder with compulsive features. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.