Citation Nr: 1324311	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  08-27 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hyperlipidemia.

2.  Entitlement to service connection for headaches.

3.  Entitlement to service connection for a heart disability.

4.  Entitlement to service connection for a sinus disability

5.  Entitlement to service connection for generalized anxiety disorder.

6.  Entitlement to service connection for bilateral carpal tunnel syndrome.  

7.  Entitlement to service connection for left plantar fasciitis.  

8.  Entitlement to service connection for sleep apnea.

9.  Entitlement to an increased rating for degenerative disc disease (DDD) of the lumbar spine.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel


INTRODUCTION

The Veteran served on active duty from August 1982 to February 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009 and July 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  The November 2009 rating decision declined to reopen the claim of service connection for hyperlipidemia and denied the claims of service connection for headaches, a heart disability, a sinus disability, generalized anxiety disorder, bilateral carpal tunnel syndrome, and left plantar fasciitis.  A notice of disagreement was received in December 2009, a statement of the case was issued in March 2011, and a substantive appeal was received in March 2011.  Similarly, a July 2011 rating decision denied service connection for sleep apnea, a notice of disagreement was received in August 2011, a statement of the case was issued in June 2012, and a substantive appeal was received in July 2012.  Notably, although the May 2013 Written Brief Presentation from the Veteran's representative lists additional matters not included on the issue page above; the Board has identified the matters on appeal as those listed by the Veteran on his March 2011 and July 2012 substantive appeals.  


Issues 1 thru 8 are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDING OF FACT

By written communication received in April 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that he wished to withdraw his appeal on the issue of an increased rating for DDD of the lumbar spine. 


CONCLUSION OF LAW

Regarding the claims for an increased rating for DDD of the lumbar spine, the criteria for withdrawal of an appeal by the Veteran have been met; the Board has no further jurisdiction in this matter.  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 FINDING AND CONCLUSION

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  Pursuant to 38 U.S.C.A. § 7105(d)(5), 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, 20.204(b).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(b).  Withdrawal may be made by the Veteran or by his authorized representative.  38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.204(a). 

In June 2012, the Board remanded the claim for an initial rating in excess of 10 perecent for degenerative disc disease (DDD) of the lumbar spine to afford the Veteran a VA spine examination.  In January 2013, the RO granted an increased, 40 percent, rating for lumbar DDD and a separate, 40 percent, rating for lumbar radiculopathy, left lower extremity.  By correspondence received in April 2013, the Veteran stated that he was satisfied with the decision rendered and wished to withdraw any remaining issue contained in the Board remand.  Accordingly, as the Veteran has expressed satisfaction with the grants, there is no longer any case or controversy for appellate review in the matter of an increased rating for DDD of the lumbar spine.  This claim must be dismissed. 


ORDER

The appeal regarding the issue of an increased rating for DDD of the lumbar spine is dismissed.  


REMAND

In his March 2011 substantive appeal, the Veteran requested a Board videoconference hearing.  In accordance with 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board).  Although the Veteran indicated that he did not want a Board hearing in the July 2012 substantive appeal (with respect to the sleep apnea claim); his March 2011 request for a Board videoconference hearing (with respect to the remaining claims) has not been withdrawn.  Under the circumstances, this case must be returned to the RO so that the appellant is afforded an opportunity to present testimony at a Board videoconference hearing.

Review of the record shows that there are multiple files in connection with the Veteran's appeals (claims file, temporary files and on Virtual VA).  These files include evidence duplicates of which is not contained in the other files.  On remand, the evidence should be consolidated into claims files prior to the Board videoconference hearing.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should review the evidence associated with the multiple files in connection with the Veteran's appeal and ensure that the records are consolidated into claims files 

2.  The RO should schedule the Veteran for a videoconference hearing before the Board.  Once the hearing is conducted, or in the event the Veteran cancels his hearing request or otherwise fails to report, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the 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 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).



_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs