Citation Nr: 1320086 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-03 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a higher initial disability rating, in excess of 30 percent, for migraine headaches. 2. Entitlement to a higher initial disability rating, in excess of 10 percent, for residual surgical chest scars status post median sternotomy. 3. Entitlement to a higher initial disability rating, in excess of 10 percent right shoulder tendinitis. 4. Entitlement to a higher initial disability rating, in excess of 10 percent, for left shoulder tendinitis. 5. Entitlement to a higher initial disability rating, in excess of 10 percent, for left knee patellofemoral syndrome with strain. 6. Entitlement to a higher initial disability rating, in excess of 10 percent, for right knee patellofemoral syndrome with strain. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran, who is the appellant in this case, served on active duty from May 1998 to April 2010. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah which granted service connection for right and left shoulder tendinitis, right knee and left knee patellofemoral syndrome with strain, migraine headaches, and residual surgical chest scars, status post median sternotomy. The RO assigned separate 10 percent disability ratings for right and left shoulder tendinitis and assigned 0 percent (noncompensable) evaluations for the remaining disabilities, all effective April 14, 2010. Jurisdiction of the appeal was subsequently transferred to the RO in Denver, Colorado. In a January 2012 rating decision, the RO granted increased 10 percent disability ratings, each, for right knee patellofemoral syndrome, left knee patellofemoral syndrome, migraines headaches, and residual surgical chest scars, all effective April 14, 2010. In January 2013, the RO granted an increased 30 percent disability rating for migraine headaches effective April 14, 2010. The Veteran was scheduled for a June 2013 Board videoconference hearing to be held at the RO, but withdrew his hearing request in June 2013. The issues of entitlement to a higher initial disability rating, in excess of 10 percent, for right knee patellofemoral syndrome with strain and a higher initial disability rating, in excess of 10 percent, for left knee patellofemoral syndrome with strain are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran in this case served on active duty from May 1998 to April 2010. 2. On June 7, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for higher initial ratings for migraine headaches, chest scars, and right and left shoulder tendinitis is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal for higher initial ratings for migraine headaches, chest scars, and right and left shoulder tendinitis by the appellant has been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). 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. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal for higher initial ratings for migraine headaches, chest scars, and for right and left shoulder tendinitis and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for higher initial ratings for migraine headaches, chest scars, and for right and left shoulder tendinitis and it is dismissed. ORDER The appeal for higher initial ratings for migraine headaches, chest scars, and for right and left shoulder tendinitis is dismissed. REMAND In a May 2010 rating decision, the RO granted service connection for right knee and left knee patellofemoral syndrome with strain and assigned initial 0 percent (noncompensable) evaluations effective April 14, 2010. The Veteran submitted a timely December 2010 notice of disagreement with the initial rating assigned. The filing of a notice of disagreement places a claim in appellate status. The failure to issue a statement of the case in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). In a January 2012 rating decision, the RO granted separate 10 percent disability ratings for right and left knee patellofemoral syndrome effective April 14, 2010. Because the RO did not grant the complete benefit sought on appeal, the Veteran's increased rating claim remains in appellate status. See, e.g., AB v. Brown, 6 Vet. App. 35 (1993) (if a claimant files a notice of disagreement in response to a decision, and a subsequent decision awards a benefit, but less than the maximum benefit available, the pending appeal is not abrogated). The Veteran has not been provided with a statement of the case addressing the appeal for higher initial ratings for right and left knee patellofemoral syndrome. The purpose of the remand is to give the RO an opportunity to cure this defect by issuing a statement of the case. Thereafter, the RO should return the claims file to the Board only if the Veteran perfects his appeal for a higher initial rating in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 (substantive appeal), the Board is not required and has no authority to decide the claim). Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case addressing the issues of entitlement to a higher initial disability rating, in excess of 10 percent, for left knee patellofemoral syndrome with strain and a higher initial disability rating, in excess of 10 percent, for right knee patellofemoral syndrome with strain. The Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the statement of the case unless he perfects his appeal. The Veteran 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. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs