Citation Nr: 18160653
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-06 237
DATE:	December 27, 2018
ORDER
Entitlement to Dependents Education Assistance (DEA) benefits under Chapter 35 is dismissed.
REMANDED
Entitlement to a permanent and total rating for service-connected posttraumatic stress disorder (PTSD) is remanded.
Entitlement to a rating in excess of 70 percent, on and after September 1, 2015, for PTSD, to include the propriety of the reduction from 100 percent to 70 percent, effective September 1, 2015 is remanded.

INTRODUCTION
The Veteran served on active duty from July 2003 to August 2007.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

FINDING OF FACT
In March 2013, before the Board promulgated a decision, the Veteran submitted a written request to withdraw the appeal as to claim of entitlement to DEA benefits under Chapter 35.

CONCLUSION OF LAW
The criteria for withdrawal of the appeal with respect to the claim of entitlement to DEA benefits under Chapter 35 have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204.

REASONS AND BASES FOR FINDING AND CONCLUSION
An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision.  38 C.F.R. § 20.204(a), (b)(3).  Such withdrawal may be made by the veteran or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing.  38 C.F.R. § 20.204(a). 
In March 2013, the Veteran submitted a request to withdraw the appeal as to the issue of entitlement to DEA benefits under Chapter 35.  The Board received this request to withdraw prior to the promulgation of a decision.  38 C.F.R. § 20.204(a), (b)(3).  The request was in writing and was submitted by the Veteran’s representative at the time.  38 C.F.R. § 20.204(a).  Consequently, there remains no allegation of error of fact or law for appellate consideration with respect to the Veteran’s claim of entitlement to DEA benefits under Chapter 35.  38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.202.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to this claim and, thus, it is dismissed.
REASONS FOR REMAND
Service connection for the Veteran’s PTSD was granted in a September 2008 rating decision, and an initial 70 percent rating was assigned thereto.
VA received evidence demonstrating that the Veteran was treated in an emergency room for suicidal ideations associated with his PTSD.  Based on this, and a subsequent VA examination in May 2010, the RO granted an increase to 100 percent, effective April 30, 2010.  In this rating decision, the RO also denied entitlement to DEA benefits under Chapter 35 because it found that the Veteran’s did not have a total service-connected disability that was considered permanent in nature.
In a June 2010 notice of disagreement, the Veteran took exception to the RO’s determination that his service-connected PTSD was not permanent and total; he made no reference to the denial of DEA benefits under Chapter 35.  Despite this, the RO issued a statement of the case in September 2011 that concerned only the claim of entitlement to DEA benefits under Chapter 35.  In his October 2011 substantive appeal, the Veteran specifically explained that he intended to appeal only the RO’s denial of his PTSD being considered permanent and total, not entitlement to DEA benefits under Chapter 35.  The RO continued to limit the scope of the Veteran’s appeal to the issue of entitlement to DEA benefits under Chapter 35, confirming and continuing the denial thereof in a February 2013 supplemental statement of the case.
In March 2013, after this claim had been certified to the Board, the Veteran submitted a request to withdraw the issue of entitlement to DEA benefits under Chapter 35.  Because this claim had been certified to the Board for appellate consideration, a dismissal of this appeal was effectuated above.
Generally, the issue of entitlement to DEA benefits under Chapter 35 includes a threshold determination as to whether the Veteran already has a permanent and total disability.  Such claims are considered under 38 U.S.C. § Chapter 35, as well as 38 C.F.R. §§ 21.3020 and 20.3021.  This statute and these regulations do not govern the determination as to the whether a permanent and total rating are warranted, which is governed by 38 C.F.R. § 3.340(b).  The statement of the case and supplemental statement of the case issued in response to the Veteran’s notice of disagreement did not cite to or discuss 38 C.F.R. § 3.340(b).
To date, the RO has not issued a statement of the case in response to the Veteran’s timely notice of disagreement with respect to the issue of entitlement to a permanent and total rating for his service-connected PTSD.  See Manlicon v. West, 12 Vet. App. 238 (1999).  As such, the Board finds that a remand is required in order for the RO to issue a statement of the case for this claim, provide the Veteran with notice of his appellate rights, and provide him the opportunity to perfect an appeal.
The issue of entitlement to a rating in excess of 70 percent for PTSD on and after September 1, 2015, to include the propriety of the reduction from 100 percent to 70 percent on and after September 1, 2015, is inextricably intertwined with the remanded claim and, thus, it must be remanded for contemporaneous consideration.
The matters are REMANDED for the following action:
1. Adjudicate the issue of entitlement to a permanent and total rating for the Veteran’s service-connected PTSD.  In so doing, specifically consider the relevant evidence dating in and after May 2010.  If the benefit sought is not granted, issue the Veteran a statement of the case and notice of his appellate rights.  Inform the Veteran and his attorney that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed.  If the Veteran perfects an appeal, it must be certified to the Board for appellate review.
2.  Then, re-adjudicate the issue of entitlement to a rating in excess of 70 percent on and after September 1, 2015 for PTSD, to include the propriety of the reduction from 100 percent to 70 percent effective September 1, 2015.  If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.
 
T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Sean G. Pflugner, Counsel

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