Citation Nr: 1330543	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  09-19 708	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for sleep apnea.

2. Entitlement to an initial evaluation in excess of 30 percent for post traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from June 24, 1978 to October 27, 1978 and from October 1, 2003 to March 10, 2005.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for sleep apnea and assigned an initial 30 percent evaluation for PTSD, respectively.

In correspondence dated in January 2012, the Veteran cancelled his request for a hearing on appeal.  See 38 C.F.R. § 20.702(e) (A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing).  As such, the Board may proceed without a hearing on appeal.

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 they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal, except as to the representative's appeal brief.

The issue of entitlement to an initial evaluation in excess of 30 percent for PTSD 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

On January 6, 2012, prior to the promulgation of a decision in the instant appeal, VA received notification from the Veteran that he was withdrawing his appeal of the denial of service connection for sleep apnea.


CONCLUSION OF LAW

The criteria are met for withdrawal of an appeal as to the issue of entitlement to service connection for sleep apnea.  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

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In the present case, the Veteran submitted a written statement, received on January 6, 2012, indicating his desire to withdraw the appeal of the claim for service connection for sleep apnea.  As the Veteran has withdrawn his appeal as to this issue, 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 regarding the issue of entitlement to service connection for sleep apnea is dismissed.


REMAND

The Veteran initially appealed the RO's rating decision dated in September 2008 that denied his claim for service connection for PTSD.  In September 2008, the Veteran filed a timely notice of disagreement with the September 2008 rating decision and the RO issued to the Veteran a Statement of the Case (SOC) dated in May 2009.  The Veteran then executed a substantive appeal to the Board, VA Form 9 dated in May 2009.  Thereafter, in a December 2010 rating decision, the RO granted the claim for service connection for PTSD and assigned an initial evaluation of 30 percent effective from December 31, 2007.

Correspondence received by VA in January 2011 reflects the Veteran's disagreement with the initial evaluation for PTSD following the grant of service connection.  As such, this issue remains on appeal to the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

In correspondence dated in January 2012, the Veteran identified VA treatment records at Hampton VA Medical Center as pertinent to his claim for an initial higher evaluation.  These records are not currently associated with the claims file or electronic claims file.  As VA has a duty to obtain records in Federal custody, remand is necessary.  38 C.F.R. § 3.159

Accordingly, the case is REMANDED for the following action:

1. The RO or the AMC should obtain all updated treatment records to include all VA treatment records dated since December 2009.  

2. Then, after ensuring any other necessary development deemed necessary has been completed as a result of the above instruction, the RO or the AMC should readjudicate the Veteran's claim for an initial evaluation in excess of 30 percent for PTSD.  If action remains adverse to the Veteran, the RO or the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The Veteran 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs