Citation Nr: 1325284	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  10-33 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to an increased rating in excess of 30 percent for residuals of a right fibula fracture.  

2.  Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, to include digital neuritis of the right foot, rated as 20 percent disabling prior to February 23, 2009, and as 40 percent disabling thereafter.  

3.  Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

A. Bordewyk, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to November 1986.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and September 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that entitlement to TDIU was denied by the RO and the Veteran was notified of this in a September 2012 letter.  The Veteran submitted a notice of disagreement with that denial in November 2012.  

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

In a November 2012 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal with regard to the issues of entitlement to an increased rating for residuals of a right fibula fracture and an increased rating for peripheral neuropathy of the right lower extremity, to include digital neuritis of the right foot.



CONCLUSION OF LAW

The criteria for withdrawal of the appeal of entitlement to an increased rating for residuals of a right fibula fracture and an increased rating for peripheral neuropathy of the right lower extremity, to include digital neuritis of the right foot have 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 FINDING AND CONCLUSION

In a November 2012 statement, the Veteran stated that he would like to withdraw his appeal for entitlement to an increased rating for residuals of a right fibula fracture and an increased rating for peripheral neuropathy of the right lower extremity, to include digital neuritis of the right foot.  

The appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  As such, the Board does not have jurisdiction to review his claim and the appeal for entitlement to an increased rating for residuals of a right fibula fracture and an increased rating for peripheral neuropathy of the right lower extremity, to include digital neuritis of the right foot is dismissed.


ORDER

The appeal for entitlement to an increased rating for residuals of a right fibula fracture and an increased rating for peripheral neuropathy of the right lower extremity, to include digital neuritis of the right foot is dismissed.


REMAND

As noted above, a review of the documents in the Virtual VA file reveals that entitlement to TDIU was denied by the RO and the Veteran was notified of this in a September 2012 letter.  The rating decision corresponding to that notice letter is not yet in the claims file.  The Veteran stated in a November 2012 letter that he wished to continue his appeal for entitlement to TDIU.   

A statement of the case has not been issued as it relates to this issue.  The Board is required to remand the case for issuance of the statement of the case.  Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue an SOC on the issue of entitlement to TDIU.  The issue should be certified to the Board only if a timely substantive appeal is received.

The appellant 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 2002 & Supp. 2012).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs