Citation Nr: 21042768 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-27 903 DATE: July 13, 2021 ORDER The appeal pertaining to the issue of entitlement to a compensable rating for bilateral hearing loss is dismissed. The appeal pertaining to the issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity (LLE) is dismissed. The appeal pertaining to the issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity (LUE) is dismissed. The appeal pertaining to the issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity (RUE) is dismissed. The appeal pertaining to the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 23, 2009, is dismissed. REMANDED Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity (RLE) is remanded. FINDING OF FACT Prior to the promulgation of a decision, the Veteran withdrew his appeal pertaining to the issues of entitlement to increased ratings for bilateral hearing loss and peripheral neuropathy of the LLE, LUE, and RUE, and entitlement to a TDIU prior to September 23, 2009, in a written correspondence received in June 2021. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a compensable rating for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the LLE by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the LUE by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the RUE by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a TDIU prior to September 23, 2009, by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board, as relevant, remanded the instant claims, as well as a claim for service connection for a skin disorder, for additional development. While on remand, an April 2021 rating decision awarded service connection for herpes zoster/shingles. As such claim has been granted in full, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining claims now return for further appellate review. The Board notes that, following the certification of the appeal to the Board, the Veteran's representative file a motion to withdraw as his legal representative pursuant to 38 C.F.R. § 20.608 in May 2021. In June 2021, the Board granted such motion and the Veteran was notified accordingly. To date, he has not appointed another representative. Therefore, the Veteran is considered unrepresented in the current appeal. 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the LLE. 3. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the LUE. 4. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the RUE. 5. Entitlement to a TDIU prior to September 23, 2009. 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. For withdrawals not made on the record at a Board hearing, such must be in writing and include (1) the name of the appellant, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id.; Hembree v. Wilkie, 33 Vet. App. 1 (2020). In the instant case, prior to the promulgation of a decision, the Veteran withdrew his appeal as to the above captioned issues in a written correspondence received in June 2021, in which he stated "I would like to withdraw the issues of ..." In this regard, such statement was in writing, authored by the Veteran, included the correct file number, and explicitly identified the issues to be withdrawn. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal pertaining to the above captioned issues and such must be dismissed. REASONS FOR REMAND 6. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the RLE. As relevant, in December 2020, the Board found that a remand was necessary in order to afford the Veteran an additional VA examination with a retrospective opinion addressing the severity of the Veteran's peripheral neuropathy of his RLE. Specifically, the Board directed that a VA examiner determine the severity of the Veteran's RLE neuropathy, and provide a retrospective opinion that addressed the following matters: (1) identify each nerve affected by peripheral neuropathy in the RLE and, if such nerve was not affected throughout the entire appeal period stemming from the Veteran's September 2015 claim, the examiner was to identify when each nerve was affected; (2) indicate the severity of the peripheral neuropathy associated with each nerve affected and, if such changed during the appeal period, identify when such change occurred; and (3) address any discrepancy between the October 2019 VA examination findings regarding muscle strength described as full and the January 2019 private evaluation findings by Dr. M.B. reflecting weakness in the Veteran's extremities. Thereafter, the Veteran underwent a VA examination in February 2021 that assessed the current nature and severity of his peripheral neuropathy of the RLE, which indicated that his sciatic, musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, and external cutaneous nerves, in addition to his previously recognized external popliteal (common peroneal) nerve, were affected, thereby resulting in separate ratings for impairment of the femoral, external cutaneous, and obturator nerves of the RLE as of the date of such examination. However, the examiner did not provide the requested retrospective opinion. Thus, the Board finds that a remand is necessary in order to ensure compliance with the prior remand orders by obtaining an addendum opinion addressing such matters. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to the VA clinician who conducted the February 2021 examination of the Veteran's peripheral nerves, or an appropriate substitute if unavailable, for an addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) For each nerve identified as affected by peripheral neuropathy in the RLE at the February 2021 VA examination, which included the sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, and external cutaneous nerves, indicate whether such has been affected throughout the appeal period stemming from the Veteran's September 2015 claim and, if such was not affected throughout the entire appeal period, identify when each nerve was affected. (B) Indicate whether the severity of the peripheral neuropathy associated with each nerve affected (listed in (A)) changed (e.g., from mild to moderate) during the appeal period stemming from the Veteran's September 2015 claim and, if so, identify when such change occurred. (C) Address any discrepancy between the October 2019 VA examination showing full muscle strength and the January 2019 private evaluation by Dr. M.B. reflecting weakness in the Veteran's RLE, such that he cannot stand for long periods, has poor balance, and uses a walker and cane. A rationale for any opinion offered should be provided. If the clinician is unable to provide such opinions, he or she should explain why such is not possible. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.