Citation Nr: 22040119 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 20-02 763 DATE: July 13, 2022 ORDER Entitlement to service connection for a sleep disorder has been withdrawn and is dismissed. Entitlement to service connection for a psychiatric disorder (claimed as mental health condition) has been withdrawn and is dismissed. REMANDED Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a left hip disability is remanded. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a right hip disability is remanded. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a left knee disability is remanded. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a right knee disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for hypertension (high blood pressure) is remanded. FINDING OF FACT At the February 16, 2022, Board hearing and in February 23, 2022, correspondence, the Board received explicit and unambiguous notification from the Veteran that a withdrawal of the claims of entitlement to service connection for (1) a sleep disorder and (2) a psychiatric disorder (claimed as a mental health condition) were requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a sleep disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a psychiatric disorder (claimed as mental health condition) 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 1975 to November 1978. In February 2022, the Veteran provided testimony in a virtual Board hearing before undersigned Acting Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Withdrawal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. At the February 2022 Board hearing, the Veteran and his representative stated that the Veteran wanted to withdraw the issues of entitlement to service connection for (1) a sleep disorder and (2) a psychiatric disorder (claimed as a mental health condition). The undersigned confirmed this during the hearing after the Veteran was sworn in. The Veteran withdrew the issues (1) explicitly, (2) unambiguously, and (3) done with a full understanding of the consequences of such action on the part of the claimant. See Hearing Transcript. The Veteran's representative also indicated that the Veteran wished to withdraw the issues in subsequent February 23, 2022, correspondence. The Board finds that the Veteran effectively withdrew the issues from the appeal. When pending appeals are withdrawn, there is no longer an allegation of errors of fact or law for appellate consideration, as such is the case in regard to the issues of entitlement to service connection for (1) a sleep disorder and (2) a psychiatric disorder (claimed as a mental health condition). In such circumstances, dismissal of the appeal is appropriate. 38 U.S.C. § 7105(d)(5). Entitlement to service connection for a sleep disorder. The Board does not have jurisdiction to review the appeal, and it is dismissed. Entitlement to service connection for a psychiatric disorder (claimed as a mental health condition). The Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND The Board finds that remand is warranted to fully assist the Veteran with the development of his remaining claims. In an April 2020 letter, a private physical therapist noted the Veteran's report of receiving Social Security Disability in 2016. As the Veteran indicated that he was in receipt of Social Security Disability benefits and the Veteran's Social Security Administration (SSA) records are not associated with the claims file, an effort must be made to locate and associate any relevant SSA records with the Veteran's claims file. The most recent VA medical records in the file are from August 2021. As there is indication that the records may be pertinent, and treatment for the Veteran's claimed disabilities on appeal may be ongoing, updated VA records should be obtained. Moreover, during the February 2022 Board hearing, the Veteran testified that he was going to another orthopedic surgeon on March 2nd [2022]. There are no records from this orthopedic surgeon in the claims file. The Veteran also indicated that he was treated by Dr. MacFarland; Dr. Neginhal, an orthopedic surgeon; Scott Orthopedics; Saint Mary's; and Dr. Ali, another orthopedic surgeon at Cabell Huntington Hospital. The Veteran testified that he had also seen a Dr. Woods when he was working at HK Porter Commence Steel for his headaches and a private doctor at a university, Dr. Muhani, for his high blood pressure. Piecemeal medical records from some of these providers are of record; however, no records from other providers are of record, which indicates potentially relevant records may be outstanding. As such, to ensure the record is complete, the Veteran should be provided an opportunity to identify any additional outstanding relevant private medical records on remand. An effort must be made to locate and associate any outstanding private medical records with the Veteran's claims file. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a left hip disability is remanded. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a right hip disability is remanded. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a left knee disability is remanded. Whether new and material evidence has been received to reopen the previously-denied claim for service connection for a right knee disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for hypertension (high blood pressure) is remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran's SSA records, to include the most recent disability determination for SSA benefits and the records upon which the determination was based. All SSA records should be associated with the record. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the appellant of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should be given an opportunity to identify any outstanding private medical records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of the claimed disabilities on appeal, to include but not limited to records from the following medical professionals: An orthopedic surgeon seen around March 2, 2022, as reflected in the Veteran's testimony during the February 2022 Board hearing; Dr. Ali Oliashirazi, at Cabell Huntington Hospital in Huntington, WV; Dr. Felix H. Cheung, at Edwards Comprehensive Cancer Center, Musom Department of Orthopedics in Huntington, WV; Marshall University Family Practice, primary care; Dr. Dawn MacFarland, at DLM Internal Medicine in Huntington, WV; Dr. Vivekanand Neginhal, at Scott Orthopedic Center in Huntington, WV; Dr. Rudy Malayil, at Saint Mary's Medical Center in Huntington, WV; Sally B. Oxley, physical therapist, at HPT Physical Therapy Specialists in Huntington, WV; A Dr. Woods, when the Veteran was working at HK Porter Commence Steel for his headaches, as testified during the February 2022 Board hearing; A Dr. Muhani, at a university practice for his high blood pressure, as testified during the February 2022 Board hearing; and any other private medical professional whose records would be relevant to the issues on appeal. Any negative response should be in writing and associated with the claims file. The Veteran may submit these records himself. (Continued on the next page) 3. Obtain all outstanding VA treatment records, particularly since August 2021, and associate them with the claims file 4. After all available evidence has been associated with the record, review the evidence, and determine if further development is warranted. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.