Citation Nr: 22017578 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-52 787 DATE: March 25, 2022 REMANDED Entitlement to service connection for insomnia is remanded. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. Entitlement to service connection for respiratory disorders is remanded. Entitlement to service connection for chronic fatigue is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for head trauma is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service from April 1986 to April 1989, from September 1990 to May 1991 and from February to March 2003. VA law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different Veterans Law Judges concerning the same issue or issues, the law also requires that the Board assign a third Veterans Law Judge to decide that issue or issues because a proceeding before the Board must be assigned either to an individual Veterans Law Judge "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102 (a); 38 C.F.R. § 19.3. Under 38 C.F.R. § 20.707, a claimant must be afforded an opportunity for a hearing before all the Board members who will ultimately decide her appeal. Thus, if the claimant's appeal is assigned to a Board panel, the claimant must be afforded the opportunity for a hearing before every member of the panel that will ultimately decide her case. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In September 2020, the Veteran testified before Veterans Law Judge (VLJ) Zissimos and in April 2021, he testified before VLJ Pappas on the same issues. Copies of the transcripts have been associated with the Veteran's electronic claims folder. In December 2021, the Veteran was offered the option for a third hearing with a VLJ participating in the panel decision. The Veteran did not respond to the letter; therefore, the Board will proceed with adjudication of the claim. The Board notes that at the September 2020 hearing, VLJ Zissimos indicated that, prior to the hearing, the Veteran clarified that he wished to withdraw his claims for entitlement to service connection for dizziness, memory loss and hemorrhoids. See September 2020 Board Hearing Transcript, p.2. However, at the April 2021 Board hearing, VLJ Pappas addressed the withdrawn issues. As there is no evidence that the Veteran was properly informed about his withdrawal of issues at a Board hearing, those issues remain on appeal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018)(holding the withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal decision must include findings as to all three elements), adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). All matters are remanded. In April and November 2018, the RO issued Statements of the Case (SOC) for the above referenced issues. The Veteran perfected his appeal for the above referenced issues in May and November 2018 VA Form 9s. Subsequent to his appeal, the Veteran underwent several VA examinations and relevant VA treatment records were associated with the Veteran's claims folder. However, the Agency of Original jurisdiction (AOJ) has not yet issued a Supplemental Statement of the Case (SSOC) as to that evidence. Neither the Veteran nor his representative waived the necessity for an SSOC. Thus, the Veteran's claims must be remanded for AOJ review of the new evidence and issuance of an SSOC. See 38 C.F.R. § 19.31 (b)(1). The matters are REMANDED for the following action: Readjudicate the claims on appeal in light of the new evidence added to the record since the April and November 2018 Statements of the Case (including VA examinations and VA treatment records). If the benefits sought remain denied, issue a Supplement Statement of the Case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. (Signatures on next page.) MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.