Citation Nr: 1327044 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 08-23 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an initial rating higher than 20 percent from July 8, 1967, to February 10, 2005, and higher than 40 percent from February 11, 2005, to January 31, 2012, for neurogenic bladder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to July 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which found clear and unmistakable error (CUE) in a prior November 1967 rating decision and resultantly determined the Veteran was entitled to service connection for neurogenic bladder retroactively effective to July 8, 1967, so back to the day following the conclusion of his military service. In response, he filed a timely Notice of Disagreement (NOD) in October 2010 requesting a higher disability rating, and the RO certified his appeal to the Board on this issue. In his October 2010 NOD, he also referenced his disagreement with a previous RO decision pertaining to his depressive disorder, which had been determined service connected in February 2009. In that February 2009 decision, the RO had granted service connection for depressive disorder and had assigned a 10 percent disability rating retroactively effective from February 29, 2008. In response he had filed an NOD with that decision in July 2009, but he was vague about what he was appealing. The RO consequently sought to clarify his NOD, and in November 2009 he indicated he was appealing for an increased rating for his depressive disorder. A Statement of the Case (SOC) was issued in January 2010, declining to award a higher rating for this disability. In February 2010 he filed a timely substantive appeal (VA Form 9) completing the steps necessary to perfect his appeal to the Board. 38 C.F.R. § 20.200 (2012). In March 2012, the RO again asked him to clarify the portions of the October 2010 NOD that pertained to his depression, and he responded shortly thereafter in a March 2012 written communication that he was seeking both an increased rating and earlier effective date for his depressive disorder. In May and December 2012, the Veteran was notified that his claim for an earlier effective date for the grant of service connection for his depressive disorder (as indicated in the March 2012 communication) could not be accepted as a freestanding claim. It was not received within the one-year appeal period following the previous rating decision in February 2009 and could not be considered an NOD to that decision. He was notified that he would have to request a revision of the effective date based on CUE. He has not filed a request for revision; however, during his recent June 2013 hearing before the undersigned Veterans Law Judge of the Board (Travel Board hearing), he only testified regarding this specific issue, indicating he was not instead appealing for an earlier effective date the grant of service connection for his neurogenic bladder or for higher ratings for this other service-connected disability. But as the issue of his entitlement to an earlier effective date for the grant of service connection for his depressive disorder, including on the basis of CUE in a prior final and binding determination concerning this claim, has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction to consider this other claim in the first instance. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has clarified the meaning of the terms frequently used to determine the scope of a claim properly on appeal before the Board. Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). A "claim" seeks entitlement to a benefit, a "theory" is a means of establishing entitlement to the benefit sought, and a "matter" is the entire subject under consideration. Id. All theories pertaining to the same benefit for the same disability are part of the same claim. Id.; but see Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (distinguishing requests for revision of a decision on the grounds of CUE under 38 U.S.C.A. § 5109(a) (West 2002)). As the meaning of the term encompasses the entire subject under consideration by the adjudicatory body, the scope of the matter may be different at different stages of adjudication. Hillyard, 24 Vet. App. at 355. Accordingly, the Board has jurisdiction to adjudicate the merits of different theories, or questions, on a single matter because the Veteran's appeal properly brings all means of establishing entitlement to the benefit sought before the Board. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995); see also Hillyard, 24 Vet. App. at 355. However, an NOD and Substantive Appeal (VA Form 9 or equivalent statement) filed by the Veteran cannot confer jurisdiction on the Board to review claims that are wholly separate and distinct from the claim presented to and adjudicated by the RO. Jarrell, 20 Vet. App. at 332; Godfrey, 7 Vet. App. at 409. So rather than deciding, the Board is referring this claim concerning the depressive disorder to the RO for consideration of the Veteran's recent hearing testimony and allegations as to why he believes there was CUE in previous rating decisions. In a January 2013 phone conversation with RO staff, the Veteran indicated that he wanted to withdraw his appeal for an increased rating for his depressive disorder. A written notice confirming this withdrawal was sent to him in January 2013, and VA has not received any notification that this withdrawal was in error. The claim for a higher rating is considered withdrawn and therefore not under consideration in this decision. 38 C.F.R. § 20.204 (2012). During his more recent June 2013 Travel Board Hearing he made clear that he is withdrawing his claim for higher disability ratings for his neurogenic bladder. A transcript of the hearing has been associated with his claim file, in particular his electronic ("Virtual VA") paperless file. Further review of Virtual VA also reveals additional medical records that are not in his physical claims file. Now more than ever, the Virtual VA paperless claims processing system is being utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. VA also is in the process of transitioning to a reportedly even better electronic medium - the Veterans Benefits Management System (VBMS). It is being implemented to provide even greater expediency in deciding claims for VA benefits. FINDINGS OF FACT 1. In June 2013, during his Travel Board Hearing, the Veteran withdrew his appeal for higher disability ratings for his neurogenic bladder. 2. Since that hearing, a transcript of the proceeding has been obtained, affirming the Veteran's name, claim number, and his intent on withdrawing his appeal of this claim. CONCLUSION OF LAW The criteria are met for withdrawal of his Substantive Appeal concerning this claim. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's Travel Board Hearing was in June 2013. During his hearing, he and the presiding Veterans Law Judge (VLJ) of the Board discussed the Veteran's claim, and he let it be known that he was not seeking higher disability ratings for his neurogenic bladder, and instead provided testimony regarding a different claim. The hearing has been transcribed, so reduced to writing. According to 38 C.F.R. § 20.204(b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim being withdrawn. The Veteran's hearing testimony is now in writing, and the transcript lists his name and claim number and clearly express his intent on withdrawing his appeal of this claim. And since the Board had not yet issued a decision concerning this claim, the criteria are met for withdrawal of the appeal of this claim. See id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C.A. § 7105(d). Accordingly, further action by the Board concerning this claim of entitlement to higher disability ratings for the neurogenic bladder is unwarranted, and the appeal of this claim is dismissed. Id. ORDER The claim of entitlement to an initial rating higher than 20 percent from July 8, 1967, to February 10, 2005, and higher than 40 percent from February 11, 2005, to January 31, 2012, for neurogenic bladder, is dismissed. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs