Citation Nr: 1524498 Decision Date: 06/09/15 Archive Date: 06/19/15 DOCKET NO. 11-32 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a lumbar spine disability. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: N. Mike Murburg, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to July 1992. This matter is on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDING OF FACT At his hearing before the Board in April 2015, the Veteran requested that his increased rating claims for a lumbar spine disability and for tinnitus be withdrawn. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal as to the issue of entitlement to a rating in excess of 10 percent for a lumbar spine disability have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2014). 2. The criteria for withdrawal of the substantive appeal as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2014). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2014); 38 C.F.R. §§ 20.101, 20.202 (2014). Here, at his hearing before the Board in April 2015, the Veteran requested that his claims for increased ratings for a lumbar spine disability and tinnitus be withdrawn. In view of the Veteran's expressed desire, the Board concludes that further action with regard to these claims is not appropriate. The Board no longer has jurisdiction over these claims and, as such, must dismiss the appeal as to these issues. ORDER The issue of entitlement to a rating in excess of 10 percent for a lumbar spine disability is dismissed without prejudice. The issue of entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed without prejudice. REMAND A remand is required before the Board may consider whether the Veteran is entitled to TDIU. First, in November 2011, the Veteran submitted a decision from the Social Security Administration (SSA), which determined that the Veteran was entitled to SSA disability benefits. Along with the SSA's decision, the Veteran submitted treatment records from Dr. J.H. While these records were labeled in VBMS as "medical treatment records furnished by SSA," it is not clear if this is accurate. In any event, since these records were submitted by the Veteran and not obtained directly from the SSA, it is likely that not all the records considered by the SSA are in VA's possession. As VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain, all SSA records must be acquired before the claim may be adjudicated. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); but see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) Next, given that the Veteran now receives disability benefits from the SSA, a VA examination is warranted in order to determine whether he is unemployable due solely to his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. If the Veteran has received treatment from any VA medical facility, these records should be obtained. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the records thereof or authorize VA to obtain the records. 2. Obtain the Veteran's SSA records including the medical evidence used to determine disability eligibility and ensure that they are entered into his VBMS file. 3. Following completion of the above, schedule the Veteran for a VA examination to determine the functional effects due solely to the Veteran's service-connected disabilities relative to his ability to maintain employment that is consistent with his education and occupational experience. The claims file should be reviewed, and the examiner should elicit from the Veteran and record a full work and educational history. 4. After the above action is completed, the TDIU claim should be readjudicated. If the claim is not granted, a supplemental statement of the case should be issued on the issue of entitlement to TDIU, and the claims file should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs