Citation Nr: 25006239 Decision Date: 05/08/25 Archive Date: 05/08/25 DOCKET NO. 18-35 753 DATE: May 8, 2025 REMANDED Entitlement to service connection for a right leg condition other than right leg exertional compartment syndrome (ECS) is remanded. Entitlement to service connection for a left leg condition other than left leg ECS is remanded. Entitlement to a disability rating in excess of 10 percent for right leg ECS is remanded. Entitlement to a disability rating in excess of 10 percent for left leg ECS is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 2004 to June 2008 and from October 2008 to August 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2017 by a Department of Veterans Affairs (VA) Regional Office. This appeal was previously before the Board in April 2020, at which time it was remanded for further development, to include providing the Veteran with VA examinations regarding his claims. Such were undertaken in September 2020, and the appeal returned to the Board in February 2023. At that time, the claims were denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision issued in June 2024, the Court set aside the Board's decision and remanded the appeal. It found that the Board erred in relying on the September 2020 VA examination reports, and a November 2020 addendum report. The Court explained that the examination reports failed to address the entirety of the Veteran's reported symptoms, or his assertions that he had right and left leg conditions other than ECS. The Court instructed the Board, upon remand, to obtain new and adequate medical opinions. Also in the June 2024 Memorandum Decision, the Court concluded that the Board provided an inadequate statement of reasons or bases for determining that the Veteran withdrew his claim of entitlement to a total disability rating based upon individual unemployability (TDIU). As background, the Board first noted in its April 2020 remand that TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2021, the Veteran filed a separate claim for TDIU. Thereafter, in both April and October 2021, the Veteran contacted VA telephonically and asked to withdraw his TDIU claim. The Board noted this withdrawal in its February 2023 decision; however, as noted by the Court, it did not fully explain its reasoning for doing so. The Board thus does so now, noting that it 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. To be effective, the "withdrawal[] must include the name of the veteran, the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn." 38 C.F.R. § 20.205(b)(1). An oral withdrawal of an appeal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). In the present case, the Veteran first contacted VA in April 2021 and asked that the claim of entitlement to TDIU, as raised in the Board's April 2020 remand, be withdrawn. Subsequently, the Veteran contacted VA in October 2021 and again stated that he wished to withdraw the issue of entitlement to TDIU. The VA 27-0820 Report of General Information prepared in regard to each of the phone calls reflect that the withdrawal was on both occasions explicit and unambiguous, and neither provide a reason to believe that the withdrawals were done without a full understanding of the consequences. DeLisio, 25 Vet. App. at 57; see Acree, 891 F.3d at 1014. This is especially true upon review of the record as a whole. If it were only the April 2021 phone call supporting the idea that the Veteran wished to withdraw his claim for TDIU, the Board might arguably reach a different conclusion. However, the intent of this phone call was reiterated and reinforced by the second call in October 2021, again requesting that the claim be dismissed. Crucially, the Board must find that the Veteran subsequently and unequivocally declined to participate in the adjudication process of the withdrawn TDIU claim, as evidenced by the subsequent actions of his authorized representative. In November 2021, the Veteran's representative filed a brief in support of his appeal before the Board. In that brief, the representative addressed the claims of entitlement to service connection for a right leg condition other than ECS, a left leg condition other than ECS, and increased disability ratings for right and left leg ECS. The issue of entitlement to TDIU was absent from the brief. The Board must conclude that this absence was intentional. Therefore, it interprets this document (in tandem with two separate phone calls to VA, made six months apart) as unequivocal proof that the Veteran intended to withdraw his claim of entitlement to TDIU, and that such withdrawal was explicit, unambiguous, and with a full understanding of the consequences. Therefore, the claim has been withdrawn. There remain no allegations of errors of fact or law for appellate consideration, and the Board does not have jurisdiction to review the withdrawn claim of entitlement to TDIU. As for the remaining claims, for the reasons set forth supra, the Board remands such in order to obtain the medical opinions requested by the Court in its June 2023 Memorandum Decision. The matters are REMANDED for the following action: Obtain an opinion regarding the Veteran's leg disabilities. The need for another examination is left to the discretion of the clinician selected to write the opinion. After reviewing the record and, if necessary, examining the Veteran, the selected clinician is asked to address the following: (a) Identify every diagnosed condition of the Veteran's right and left legs, other than exertional compartment syndrome, that have been present during the appeal period. (b) With respect to each condition (other than the service-connected residuals of right and left leg exertional compartment syndrome), address whether it is at least as likely as not that such disorder had its onset during or were caused by the Veteran's military service. (c) With respect to each condition (other than the service-connected residuals of right and left leg exertional compartment syndrome), address whether it is at least as likely as not that such disorder was caused or aggravated by the Veteran's service-connected residuals of right and left exertional compartment syndrome disabilities. Both causation and aggravation must be addressed. If aggravation is found, the examiner should specify the baseline level of severity of the right and left legs before the chronic worsening and the level of severity of the right and left legs after the chronic worsening. (d) As to the service-connected residuals of left leg and right leg exertional compartment syndrome, the examiner is requested to provide an assessment of the symptoms of, and severity of, the disorder for the entire appeal period. Importantly, each of the Veteran's subjective complaints must be discussed and assessed, including but not limited to the following: pain and weakness, swelling, numbness, loss of motion, and burning sensations. A detailed rationale for any opinion offered should be provided. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.