Citation Nr: 1310075 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 03-15 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus. 2. Entitlement to an initial compensable rating prior to May16, 2006, and to a rating in excess of 40 percent beginning May 16, 2006, for chronic prostatitis. 3. Whether there was clear and unmistakable error in the September 1971 rating decision that denied service connection for 2nd degree bilateral pes planus, asymptomatic. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 2007 and February 2008 by the Department of Veterans Affairs (VA) Appeals Management Center (AMC); and on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The April 2007 rating decision granted service connection for 2nd degree pes planus, asymptomatic, with a rating of 10 percent effective January 24, 2001. The February 2008 rating decision granted service connection for chronic prostatitis (claimed as a genitourinary condition) with a noncompensable rating effective December 4, 2001, until May 16, 2006, when a rating of 20 percent was assigned. The April 2010 rating decision found no clear and unmistakable error in a September 1971 denial, by the RO, of service connection for 2nd degree bilateral pes planus, asymptomatic. In a rating decision in April 2010 the RO increased the rating for the Veteran's service-connected bilateral pes planus to 30 percent effective January 24, 2001; and the rating for the Veteran's service-connected prostatitis from 20 percent to 40 percent effective May 16, 2006. In November 2012 the Veteran testified before the undersigned Veterans Law Judge on whether there was clear and unmistakable error in the September 1971 denial of service connection for 2nd degree bilateral pes planus, asymptomatic. A transcript of the hearing is in the claims file. The issue of whether there was clear and unmistakable error in the September 1971 denial by the RO of service connection for pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a rating decision in April 2007, the RO granted service connection for 2nd degree pes planus, asymptomatic, with a rating of 10 percent effective January 24, 2001; and in a decision in November 2008, the RO granted service connection for chronic prostatitis (claimed as a genitourinary condition) with a noncompensable rating effective December 4, 2001, until May 16, 2006, when a rating of 20 percent was assigned. The Veteran appealed the assigned ratings. 2. In a rating decision in April 2010 the RO increased the rating for the Veteran's service-connected bilateral pes planus to 30 percent effective January 24, 2001; and the rating for the Veteran's service-connected prostatitis from 20 percent to 40 percent effective May 16, 2006. 3. In correspondence dated in March 2013, prior to promulgation of a decision by the Board, the Veteran withdrew his appeals. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the claim for an initial rating higher than 30 percent for bilateral pes planus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal on the claim for an initial compensable rating prior to May16, 2006, and higher than 40 percent disabling beginning May16, 2006, for chronic prostatitis, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a decision in April 2007, the RO granted service connection for 2nd degree pes planus, asymptomatic, with a rating of 10 percent effective January 24, 2001; and in a decision in November 2008, the RO granted service connection for chronic prostatitis (claimed as a genitourinary condition) with a noncompensable rating effective December 4, 2001, until May 16, 2006, when a rating of 20 percent was assigned. The Veteran timely appealed all of the assigned ratings. In a rating decision in April 2010 the RO increased the rating for the Veteran's service-connected bilateral pes planus to 30 percent effective January 24, 2001; and the rating for the Veteran's service-connected prostatitis from 20 percent to 40 percent effective May 16, 2006. In correspondence dated in March 2013 the Veteran stated that he was withdrawing his appeals regarding these issues. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. The March 2013 correspondence from the Veteran clearly evinces his intent to withdraw his appeal for an increased rating for his service-connected bilateral pes planus and chronic prostatitis disabilities. Consequently, there remain no allegations of errors of fact or law for appellate consideration in these matters. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. 38 U.S.C.A. § 7105. ORDER The appeal for an initial rating higher than 30 percent for bilateral pes planus is dismissed. The appeal for a higher initial rating for chronic prostatitis, evaluated as 0 percent disabling prior to May16, 2006, and as 40 percent disabling since May16, 2006, is dismissed. REMAND With regard to the Veteran's allegation of clear and unmistakable error in the RO's September 1971 denial of service connection for bilateral pes planus, in a rating decision in April 2010 and Statement of the Case in January 2011 the RO stated that it had reviewed its September 1971 rating decision that denied service connection for 2nd degree bilateral pes planus and found no administrative, evaluative, or judgmental error on the part of the rating specialist; and noted that the disorder was denied because it was asymptomatic and inactive. There was no further discourse on the matter. The Veteran was not apprised in the January 2011 Statement of the Case of the applicable laws and regulations relevant to determining entitlement to service connected benefits generally, or pes planus in particular, that existed at the time of the prior decision. Remand for notice to the Veteran of the applicable laws and regulations that existed at the time of the September 1971 rating decision is warranted. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice of the applicable laws and regulations that pertained to the issue of service connection for bilateral flat feet including, but not limited to, 38 C.F.R. §§ 3.303, 3.304, and 4.57, as in effect at the time of the 1971 rating action at issue. 2. After providing the Veteran an opportunity to respond, re-adjudicate the claim, and if it remains denied, provide the Veteran and his representative a supplemental statement of the case on the issue, after which the case should be returned to the Board. The Veteran 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 Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs