Citation Nr: 1330734 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-17 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a thoracic spine disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2009, a statement of the case was issued in March 2010, a substantive appeal was received in April 2010. The Veteran presented testimony during an October 2012 Board hearing The issue of entitlement to service connection for a cervical spine disability (as well as several increased rating issues and a total rating based on individual unemployability issue) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT On the record during the Veteran's October 2012 Board hearing, the Veteran withdrew the appeal of the issue of entitlement to service connection for thoracic spine disability; there are no questions of fact or law remaining before the Board in this matter. CONCLUSION OF LAW With respect to the Veteran's claim for service connection for a thoracic spine disability, the criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction in such matter. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. Regarding the issue of entitlement to service connection for thoracic spine disability, the Veteran withdrew his appeal of this matter on the record at the October 2012 Board hearing. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal on this matter, and the issue of entitlement to service connection for a thoracic spine disability is dismissed. ORDER The appeal on the issue of service connection for thoracic spine disability is dismissed. REMAND Cervical Spine Disability At the October 2012 Board hearing, the Veteran clarified that he seeks service connection for a cervical spine disability resulting, on a direct basis, from a 1962 in-service motor vehicle accident (and not secondary to his other service-connected disabilities). In November 2012, the Veteran submitted a private nexus opinion from Dr. J. C., who opined that "from reviewing the medical records that [the Veteran] provided to me, I would say that the type of injury that he sustained to the face and the jaw fracture is many times associated also with neck injuries. In other words[,] it is possible that at the time of the accident that led to the facial fractures, he also sustained the neck injury[.]" This opinion satisfies the low threshold of the McLendon standard and remand is required for a VA medical opinion addressing whether the Veteran's cervical spine disability is related, on a direct basis (prior VA examinations considered secondary service connection), to his in-service accident. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Increased Ratings and TDIU In a July 2012 Statement of Accredited Representative, the Veteran "contend[ed] that all of his service-connected disabilities are worse than reflected by the most recent [December 2011] rating, and that they keep him from working," and were thus part-and-parcel of his TDIU rating request. The Board construes this statement to be a notice of disagreement with, and expressing an intent to appeal, the RO's December 2011 rating decision granting a noncompensable rating for residuals of a left femur fracture and continuing the Veteran's disability ratings for a mood disorder; degenerative disc disease of the lumbar spine; postoperative left femur fracture with mild degenerative joint disease, limited flexion, and shortening of the left leg; radiculopathy of the left and right lower extremities; right knee arthritis; and residuals of a left mandible fracture. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 20.201 (2012). The next appropriate step is to remand these matters for the RO to issue a statement of the case regarding the contested December 2011 rating decision. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following actions: 1. The RO should schedule the Veteran for a VA cervical spine examination. The Veteran's claims should be reviewed by the examiner in conjunction with the opinion. Any medically indicated tests should be accomplished. Based on review of the examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's cervical spine disability was manifested during the Veteran's active duty service or is otherwise causally related to such service. The examiner is asked to specifically address the question of whether the Veteran suffered an injury to the cervical spine in the same 1962 automobile accident that resulted in other injuries which are now service-connected. 2. After completion of the above, the RO should review the expanded record and determine if service connection for a cervical spine disability is warranted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 3. The RO should undertake any additional development (such as VA examinations) with regard to the appeal initiated by the Veteran's notice of disagreement with the December 2011 rating decision seeking an higher initial rating for residuals of a left femur scar and increased ratings for his mood disorder; degenerative disc disease of the thoracolumbar spine; postoperative left femur fracture with mild degenerative joint disease, limited flexion, and shortening of the left leg; radiculopathy of the left and right lower extremities; right knee arthritis; and residuals of a left mandible fracture. The RO should also formally adjudicate the express claim of entitlement to a total disability rating based on individual unemployability. 4. After any additional development deemed necessary is concluded, the RO should then issue an appropriate statement of the case as to the increased rating issues and the TDIU issue, and afford the Veteran and his representative the opportunity to respond. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect his appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is received, the case should be returned to the Board for appellate review. 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs