Citation Nr: 0810966 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-00 006A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for residuals of a lumbar spinal gunshot wound to Muscle Group XX. 2. Entitlement to an evaluation in excess of 20 percent for status post exploratory laparotomy with diastasis, for the time period prior to April 11, 2006. 3. Entitlement to an evaluation in excess of 40 percent for status post exploratory laparotomy with diastasis, for the time period from April 11, 2006. 4. Entitlement to an evaluation in excess of 10 percent for residuals of a right atrium gunshot wound with retained foreign bodies. 5. Entitlement to an effective date earlier than April 11, 2006 for the assignment of a 40 percent rating for status post exploratory laparotomy with diastasis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran served on active military duty from September 1978 to September 1981. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied entitlement to entitlement to increased evaluations for residuals of a lumbar spinal gunshot wound to Muscle Group XX, for status post exploratory laparotomy with diastasis, and for residuals of a right atrium gunshot wound with retained foreign bodies. In an additional October 2004 rating decision, the RO granted a 40 percent evaluation for residuals of a lumbar spinal gunshot wound to Muscle Group XX, effective September 8, 2003. Thereafter, in a November 2007 rating decision, the RO granted a 40 percent evaluation for status post exploratory laparotomy with diastasis, effective April 11, 2006. Nonetheless, these issues of entitlement to increased evaluations remain before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In statements dated in January 2005, September 2006, and September 2007, the veteran filed claims for entitlement to service connection for adjustment disorder with chronic anxiety, for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), and for entitlement to service connection for anxiety disorder, to include as secondary to a service-connected back disability. The Board refers these matters to the RO for appropriate action. The issue of entitlement to an effective date earlier than April 11, 2006 for the assignment of a 40 percent rating for status post exploratory laparotomy with diastasis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In March 2008, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of his appeals for increased evaluations for residuals of a lumbar spinal gunshot wound to Muscle Group XX, for status post exploratory laparotomy with diastasis, and for residuals of a right atrium gunshot wound with retained foreign bodies is requested. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the appellant's representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. See 38 C.F.R. § 20.204 (2007). The appellant, through his authorized representative, has withdrawn his appeals for increased evaluations for residuals of a lumbar spinal gunshot wound to Muscle Group XX, for status post exploratory laparotomy with diastasis, and for residuals of a right atrium gunshot wound with retained foreign bodies. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. ORDER The appeal for entitlement to an evaluation in excess of 40 percent for residuals of a lumbar spinal gunshot wound to Muscle Group XX is dismissed. The appeal for entitlement to an evaluation in excess of 20 percent for status post exploratory laparotomy with diastasis, for the time period prior to April 11, 2006, is dismissed. The appeal for entitlement to an evaluation in excess of 40 percent for status post exploratory laparotomy with diastasis, for the time period from April 11, 2006, is dismissed. The appeal for entitlement to an evaluation in excess of 10 percent for residuals of a right atrium gunshot wound with retained foreign bodies is dismissed. REMAND In a statement received in March 2008, the veteran expressed disagreement with the effective date of April 11, 2006 that was assigned for the 40 percent rating for status post exploratory laparotomy with diastasis in the November 2007 rating decision. This statement is accepted as a timely notice of disagreement (NOD) with the November 2007 rating decision on this issue. See 38 C.F.R. §§ 20.201, 20.302(a) (2006). In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) held that when an appellant files a timely NOD and there is no statement of the case (SOC) issued, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC. Consequently, this matter will be remanded for the issuance of a SOC. Accordingly, the case is REMANDED for the following action: The RO should issue to the veteran and his representative an SOC addressing the claim for entitlement to an effective date earlier than April 11, 2006 for the assignment of a 40 percent rating for status post exploratory laparotomy with diastasis. The veteran is hereby informed that he must submit a timely and adequate substantive appeal as to this issue for the issue to be before the Board on appeal. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2007). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs