Citation Nr: 22018172 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-36 546 DATE: March 28, 2022 ORDER Entitlement to a rating in excess of 40 percent for post traumatic grand mal seizures has been withdrawn. Entitlement to service connection for bilateral hearing loss has been withdrawn. Entitlement to aid and attendance allowance for spouse has been withdrawn. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the November 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that a withdrawal of the appeal of the issue of entitlement to a rating in excess of 40 percent for post traumatic grand mal seizures is requested. 2. At the November 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that a withdrawal of the appeal of the issue of entitlement to service connection for bilateral hearing loss is requested. 3. At the November 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that a withdrawal of the appeal of the issue of entitlement to aid and attendance allowance for spouse is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a rating in excess of 40 percent for post traumatic grand mal seizures are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the issue of entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the issue of entitlement to aid and attendance allowance for spouse are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to April 1987. With respect to the remaining issue on appeal, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2021. A transcript has been associated with the record. In November 2021, the Veteran also testified with respect to the issues of entitlement to service connection for right and left hip disabilities. However, this hearing was held under the Appeals Modernization Act (AMA) and, thus, will be addressed in a separate Board decision under the AMA. The Board observes that numerous relevant records have been associated with the claims file that have not been considered by the agency of original jurisdiction (AOJ) with respect to the remaining claim of entitlement to a TDIU. Nevertheless, the Board finds that in light of the need to remand this issue, a waiver of AOJ consideration of such evidence is not necessary since there is no prejudice to the Veteran as the AOJ will have the opportunity to consider this evidence on remand. Withdrawal of Claims 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, at the Board hearing, the Veteran withdrew the issues of entitlement to a rating in excess of 40 percent for post traumatic grand mal seizures; entitlement to service connection for bilateral hearing loss; and entitlement to aid and attendance allowance for spouse. In this regard, the Veterans Law Judge explicitly noted the withdrawal of these three issues at the hearing and informed the Veteran that the withdrawal meant that testimony would not be taken on these issues and a decision would not be made on these issues. Importantly, the Veteran was represented by his private attorney at the hearing who acknowledged on the record that these issues were no longer on appeal. In sum, the withdrawal of these issues was explicit, unambiguous, and 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 also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Thus, 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 the issues of entitlement to a rating in excess of 40 percent for post traumatic grand mal seizures; entitlement to service connection for bilateral hearing loss; and entitlement to aid and attendance allowance for spouse and they are dismissed. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran is also seeking entitlement to a TDIU. However, the Board finds that further development is necessary with respect to this issue. In this regard, it is unclear based on the current record as to what date the Veteran was last gainfully employed. For instance, in his January 2016 application for a TDIU, he indicated that his last date of employment was November 2015. However, subsequent VA clinical records and April 2018 VA examination indicate that he was still gainfully employed. As such, the Board finds that additional employment and income history needs to be obtained from the Veteran. Moreover, in support of his claim, the Veteran submitted a December 2021 private vocational evaluation, which indicated that he worked part time earning $1000.00 or less. The private examiner found that based on the limitations set forth in the April 2018 VA examination, the Veteran was unemployable due to his seizure disorder. In this regard, the December 2021 private examiner indicated that the Veteran suffered from two seizures per week. However, this vocational assessment appears to be contradicted by the April 2018 VA examination, which found that the Veteran had only lost 0-1 week work time in the last 12 months. Given these contradictions, the Board finds that a further examination is necessary to address the functional impairment caused by the Veteran's seizure disorder in light of his education and work experience. Further, the Veteran has subsequently been service-connected for his cervical spine disability with associated bilateral upper extremity radiculopathy. The Veteran was afforded a VA examination in April 2020 concerning his neck disability. Unfortunately, this examination has not been reviewed by the AOJ in association with this claim. Nevertheless, it does not appear that the examiner addressed the functional impairment caused by the Veteran's cervical spine disability with associated radiculopathy in light of the Veteran's education and work experience. Thus, the Board finds that a VA examination addressing the functional impairment caused by the Veteran's service-connected cervical spine disability with associated radiculopathy is necessary. In light of the need to remand, additional VA clinical records dated from March 2021 to the present should be obtained. The matters are REMANDED for the following action: 1. Take appropriate steps to obtain the Veteran's complete employment and income history. 2. Obtain VA clinical records from March 2021 to the present. 3. Schedule the Veteran for an appropriate VA examination(s) with a medical professional(s) to address the functional impairment the Veteran's service-connected disabilities have on his activities of daily living and the effect on his employment consistent with his education and work experience. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.