Citation Nr: 1324280	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  09-29 278	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for hypertension.  

2.  Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia.  

3.  Entitlement to service connection for right biceps subluxation, claimed as blown right biceps.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from July 1977 to August 1998.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2007 and February 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

The Board notes that in the Veteran's VA Form 9, Appeal to the Board of Veterans' Appeals, received in August 2009, the Veteran indicated that he wanted to have a hearing before the Board via videoconference.  The Veteran was scheduled for a videoconference hearing on July 16, 2013.  However, the record reflects that that the Veteran subsequently cancelled his hearing request.  See the July 2013 statement from the Veteran's representative.  The Board finds that there is no Board hearing request pending at this time.  38 C.F.R. § 20.702(d) (2012).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 

The issues of entitlement to an evaluation in excess of 10 percent for right knee chondromalacia and entitlement to service connection for right biceps subluxation, claimed as blown right biceps, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDING OF FACT

On July 16, 2013, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran that he wanted to withdraw his appeal regarding entitlement to service connection for hypertension.  


CONCLUSION OF LAW

The criteria for withdrawal of the appeal as to the issue of entitlement to service connection for hypertension have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012).  


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.  38 C.F.R. § 20.202 (2012).  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204 (2012). 

On July 16, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran indicating that he would like to withdraw his appeal regarding entitlement to service connection for hypertension.  The Board finds the Veteran has withdrawn his claim currently on appeal, 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 and it is dismissed.  


ORDER

The appeal as to entitlement to service connection for hypertension is dismissed.  


REMAND

By way of procedural background, the Veteran filed an informal claim for a temporary total disability rating due to surgical or other treatment performed by a VA or other approved hospital or outpatient treatment facility for his service-connected right knee chondromalacia in July 2008.  In a February 2009 rating decision, the RO granted a temporary total evaluation for the Veteran's service-connected right knee chondromalacia based on surgical or other treatment necessitating convalescence, effective June 15, 2007.  An evaluation of 10 percent was also assigned for the service-connected right knee disability from August 20, 2007, and entitlement to service connection for right biceps subluxation, claimed as blown right biceps was denied.  In August 2009, the Veteran submitted a notice of disagreement (NOD) with regards to the issues of entitlement to an increased evaluation in excess of 10 percent for the service-connected right knee chondromalacia and entitlement to service connection for right biceps subluxation, claimed as blown right biceps.  See the August 2009 NOD.  

Based upon the evidence of record, the Board finds that the Veteran has submitted a timely NOD with regards to the February 2009 decision as it pertains to the issues of entitlement to an increased evaluation in excess of 10 percent for the service-connected right knee chondromalacia and entitlement to service connection for right biceps subluxation, claimed as blown right biceps; however, no statement of the case (SOC) was issued addressing these claims.  Consequently, the Board must remand this issue for the RO to issue a SOC and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal.  Manlicon v. West, 12 Vet. App. 238 (1999).  

Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary.  Accordingly, the case is REMANDED for the following action:

1.  Issue a statement of the case (SOC) to the Veteran addressing the issues of entitlement to an increased evaluation in excess of 10 percent for the service-connected right knee chondromalacia and entitlement to service connection for right biceps subluxation, claimed as blown right biceps.  The Veteran must be advised of the time limit in which he may file a Substantive Appeal.  Then, only if the appeal is timely perfected, should the issues be returned to the Board for further appellate consideration, if otherwise in order.  

2.  After conducting any additional development, readjudicate the claims currently on appeal.  If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

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. 2012).



______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs