Citation Nr: 1323298 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-36 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder to include bronchitis. 2. Entitlement to initial compensable rating for lumbar spine degenerative disc disease prior to December 16, 2011, and 10 percent from that date. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active service from May 1983 to March 2007. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO). In March 2011, the Veteran appeared and testified at a Board hearing before a Veterans Law Judge held at the RO. A transcript of the proceedings is of record. In November 2012, the Veteran was notified that the Veterans Law Judge who held the March 2011 hearing was no longer with the Board and he was asked whether he would like another hearing, to which he responded he did not wish to appear at a second hearing, and that his case should be considered on the evidence of record. This matter was previously before the Board in November 2011 when it was remanded for additional development. As discussed in the November 2011 Board Remand, in June 2008, the Veteran submitted a claim of entitlement to service connection for an obstructive lung defect; and at the March 2011 hearing, the Veteran advanced claims of entitlement to increased evaluations for his cervical spine degenerative disc disease and hemorrhoids. To date, these issues have been not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. The issue of entitlement to service connection for a chronic respiratory disorder to include bronchitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT In November 2012, prior to the promulgation of a decision in the appeal, the Veteran informed the Board that he wished to withdrew his appeal as to the issue of entitlement to an increased rating for his lumbar spine degenerative disc disease. As such, there is no question of fact or law remaining before the Board on this matter. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal as to the issue of the Veteran's entitlement to increased initial ratings for lumbar spine degenerative disc disease have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any issue on appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a statement received in November 2012, the Veteran indicated he wished to withdraw his appeal seeking increases in the "staged" ratings assigned for lumbar spine degenerative disc disease. Hence, there is no allegation of error or fact or law for appellate consideration on these claims. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed. ORDER The appeal involving increased initial ratings for the lumbar spine degenerative disc disease prior to December 16, 2011, and from that date, is dismissed. REMAND With regard to the Veteran's claim of service connection for a chronic respiratory disorder to include bronchitis, in January 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). A VHA opinion was obtained in April 2013. The Veteran was sent a copy of that opinion with a Medical Opinion Response Form in an April 2013 letter. In response to that letter, the Veteran submitted additional argument, as well as private treatment records from Pulmonary Associates of Bay County that were previously not of record. The Veteran signed and dated the Medical Opinion Response Form, marking the option, "I am submitting the enclosed argument and/or evidence. Please remand my case to the AOJ for review of this new evidence submitted by me." Given the Veteran's explicit request, the claim must be remanded to the AOJ for initial review of the recently submitted evidence. Accordingly, the case is REMANDED for the following action: The AMC/RO should review the claims file (to specifically include consideration of the additional evidence the Veteran submitted to the Board expressly without a waiver of AOJ review), undertake any further development that may be indicated by the additional evidence received, and re-adjudicate the matter on appeal. If the claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs