Citation Nr: 21032875 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 15-06 606A DATE: May 28, 2021 ORDER The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) has been withdrawn. REMANDED The claim of entitlement to a rating in excess of 20 percent for degenerative disc disease and degenerative facet joint disease of the lumbar spine is remanded. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to September 2, 2014, is remanded. FINDING OF FACT On January 27, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his claim of entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to service connection 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 had honorable active duty service with the United States Army from May 1971 to March 1973 and February 1975 to October 1981. In May 2019, the Veteran testified before the undersigned in a videoconference hearing. A transcript of the proceedings has been associated with the record. The Board previously remanded these issues in November 2019 for additional evidentiary development. The Board notes that the claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) was granted in a February 2021 rating decision effective the date the Veteran met the schedular requirements. The grant did not cover the entire period on appeal with the increased rating claim for the Veteran's back disability. The Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), took effect on February 19, 2019. The Veteran appealed the effective date of the grant of a TDIU under AMA. While the Board notes that this creates duplicative appeals streams, continuing to pursue entitlement to a TDIU under the legacy system is more favorable to the Veteran. Thus, the Board will address the issue herein. 1. The claim of entitlement to service connection 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn this issue on appeal in a January 2021 correspondence 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 of this issue and it is dismissed. REASONS FOR REMAND 1. The claim of entitlement to a rating in excess of 20 percent for degenerative disc disease and degenerative facet joint disease of the lumbar spine is remanded. The Board regrets the additional delay, but remand is necessary in order to ensure the evidentiary record is complete prior to adjudication on the merits. In the May 2019 hearing before the undersigned, the Veteran reported receiving private medical treatment for his lumbar spine disability. Reasonable efforts have not been made to attempt to obtain these records. Thus, remand is necessary in order to search for these private treatment records. 2. The claim of entitlement to a TDIU prior to September 2, 2014 The Veteran is presently in receipt of a TDIU effective September 2, 2014, the day he met the schedular requirements for the grant. Evidence of record, however, reflects that the Veteran became unable to work due to his service-connected disabilities around November 2011 as he was medically retired from employment due to these disabilities. Records reflect previous experience in manual labor positions, including material explosive handler. The Veteran reported missing significant periods of time from work due to his back disability. When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. See 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). After a thorough review of the medical and lay evidence of record, the Board finds that referral of extraschedular consideration is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the Veteran's back disability. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Request additional information from the Veteran regarding his employment and educational history, particularly prior to September 2014. Allow sufficient time for response. 3. Following completion of the foregoing, refer the Veteran's claim for TDIU to VA's Director of Compensation Service or his/her designee for extraschedular TDIU consideration for any or all of the period beginning at the time of the Veteran's unemployment around November 2011. (Continued on the next page) 4. Thereafter, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.