Citation Nr: 1330221	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  11-27 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for sleep apnea, including as secondary to service-connected disabilities.

2.  Entitlement to an initial compensable rating for a left knee scar.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty from September 1977 to September 1997.

He appealed to the Board of Veterans' Appeals (Board/BVA) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied his claim of entitlement to service connection for sleep apnea.  In an October 2012 rating decision since issued, however, he was granted service connection for a left knee residual scar.  An initial 0 percent, i.e., noncompensable, rating was assigned for this scar retroactively effective from June 22, 2012.

He recently submitted a statement indicating he is withdrawing the appeal of his claim of entitlement to service connection for sleep apnea, so the Board is summarily dismissing this claim.  However, it appears he wants to appeal for a higher initial rating for his left knee scar, so the Board is remanding this other claim to the RO via the Appeals Management Center (AMC) in Washington DC.


FINDING OF FACT

In correspondence dated in May 2013, so prior to the promulgation of a decision in this appeal, the Veteran withdrew his claim of entitlement to service connection for sleep apnea.


CONCLUSION OF LAW

The criteria are met for withdrawal of the Substantive Appeal concerning this claim.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002).  A Substantive Appeal (VA Form 9 or equivalent statement) may be withdrawn on the record during a hearing and at any time before the Board promulgates a decision.  See 38 C.F.R. §§ 20.202, 20.204 (2013).  Withdrawal may be by the Veteran or his authorized representative.  See 38 C.F.R. § 20.204.

Here, in a May 2013 statement, the Veteran requested that his appeal for sleep apnea no longer be continued since he agreed with the decision that this condition is not service connected.

Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim.  Accordingly, the Board does not have jurisdiction to review this claim, and it must be dismissed.


ORDER

The appeal for service connection for sleep apnea is dismissed.


REMAND

As already alluded to, in October 2012 the Veteran was granted service connection for a left knee residual scar, which received an initial 0 percent disability rating.  In correspondence since dated in August 2013, so within one year of receiving notification of that decision, he submitted a statement that read, 
"Increased service-connected for scar left knees."


When read liberally, that August 2013 statement may be construed as a timely Notice of Disagreement (NOD) with the RO's October 2012 decision assigning the 0 percent initial rating for this disability.  38 C.F.R. § 20.201 (a communication expressing dissatisfaction with an RO decision and a desire to contest the result constitutes an NOD; special wording not required).  See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes [an NOD]") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)).

The filing of an NOD places a claim in appellate status.  The failure to issue a Statement of the Case (SOC) in this circumstance renders a claim procedurally defective and necessitates a remand.  See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2013); see also Manlincon v. West, 12 Vet. App. 238 (1999).  An SOC has not been issued in response to the Veteran's August 2013 NOD.  An appeal to the Board consist of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed substantive appeal (e.g., VA Form 9 or equivalent statement).  See 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  According to 38 U.S.C.A. § 7105(d)(1), once a claimant files a timely NOD, and the Agency of Original Jurisdiction (AOJ), which, here, is the RO, does not resolve the disagreement either by granting the benefit or through withdrawal of the NOD, the agency shall prepare an SOC. "Section 7105(d)(3) makes the furnishing of an [SOC] the event that triggers the Veteran's obligation to file a 'formal appeal' with the Board[.]"  Cook v. Principi, 318 F.3d 1334, 1340-41 (Fed. Cir. 2002) (en banc).


So, here, as the August 2013 submission has been construed by the Board as a timely NOD, this claim must be remanded (rather than merely referred) so an SOC may be provided regarding this issue of whether the Veteran is entitled to an initial compensable rating for his left knee scar.  He then in response will have opportunity to complete the steps necessary to perfect his appeal of this claim to the Board by also filing a timely substantive appeal (VA Form 9 or equivalent).

Accordingly, this claim is REMANDED for the following action:

Provide the Veteran an SOC addressing the issue of his claimed entitlement to an initial compensable rating for his left knee scar.  Remind him that he still needs to file a Substantive Appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this claim to the Board, and advise him of how long he has to do this.  Only if he perfects his appeal of this claim should it be returned to the Board for further appellate consideration.

He has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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).




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs