Citation Nr: 1332464 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-13 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial higher rating for posttraumatic stress disorder (PTSD), rated as 10 percent disabling prior to May 15, 2012 and as 50 percent disabling thereafter. 2. Entitlement to an initial compensable rating for scar status post laminectomy associated with degenerative disc/joint disease of the lumbar spine; radiculopathy. 3. Entitlement to an initial compensable rating for chronic capsulitis of the left foot. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from July 1987 to December 1987, January 1991 to May 1991, October 2001 to March 2002, June 2006, October 2009 to December 2010 and May 2011 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a July 2003 rating decision, the RO granted service connection for adjustment disorder with mixed anxiety and depressed mood and assigned a 10 percent evaluation, effective March 30, 2002. In a December 2003 rating decision, the RO granted service connection for chronic capsulitis of the left foot and assigned a noncompensable evaluation, effective April 13, 2002. Finally, in a July 2008 rating decision, the RO granted service connection for scar status post laminectomy and assigned a noncompensable evaluation, effective March 7, 2008. With respect to all of these disabilities, the Veteran appealed the initial ratings assigned. The Jackson, Mississippi RO currently has jurisdiction over the case. The Veteran's Virtual VA electronic record has also been reviewed in conjunction with the appeal. A March 2013 supplemental statement of the case (SSOC) showed that a 50 percent evaluation was awarded for PTSD (previously diagnosed as adjustment disorder with mixed anxiety and depressed mood), effective May 26, 2011, based on a VA examination that occurred on that date. However, in an August 2013 rating decision, the RO adjusted the effective date to May 15, 2012 because the Veteran was on active duty from May 2011 to May 2012 and not entitled to receive compensation benefits during this period. The issue of entitlement to waiver of an overpayment in the amount of $10, 583.47 was also on appeal and the RO issued a statement of the case in February 2012. However, as the Veteran failed to file a substantive appeal, this matter is no longer in appellate status. In April 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript has been associated with the claims file. The Board notes that at the hearing, the Veteran provided his current address, which is listed in the hearing transcript. At the Board hearing, the Veteran also reported that his compensation benefit payments had not been resumed since his most recent discharge from active duty. Nevertheless, as noted in an August 2013 letter, it appears that such payments have since been resumed. If not, this matter is referred back to the RO for appropriate action. In a September 2011 statement and at the Board hearing, the Veteran asserted that he was seeking a rating in excess of 20 percent for his service-connected degenerative disc/joint disease of the lumbar spine with radiculopathy and believed that this matter was currently on appeal. However, a review of the record reveals that the Veteran was granted service connection for his low back disability in the July 2003 rating decision and was awarded a 20 percent rating. He did not initiate an appeal to this decision with respect to the back. Subsequently, in August 2006, the Veteran filed a claim for an increase. In a December 2006 rating decision, the RO continued the 20 percent rating. Again, the record shows that the Veteran did not initiate an appeal from this determination in accordance with 38 C.F.R. § 20.201. As such, this issue is not currently in appellate status. The record also shows that the Veteran on numerous occasions has requested a total disability rating based on individual unemployability (TDIU). In a February 2007 letter that accompanied the December 2006 rating decision, the RO indicated that it was deferring this matter as it was inextricably intertwined with the issue of entitlement to a higher rating for PTSD. Nevertheless, it does not appear that the RO ever adjudicated this matter. Finally, in October 2008, the Veteran filed an informal claim for service connection for erectile dysfunction to include entitlement to special monthly compensation based on loss of use of a creative organ. However again, it does not appear that this issue has been adjudicated by the RO. In sum, while these issues have been raised by the record, they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT At the April 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal pertaining to the issues of entitlement to initial higher ratings for PTSD, scar status post laminectomy and chronic capsulitis of the left foot. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran pertaining to the issues of entitlement to initial higher ratings for PTSD, scar status post laminectomy and chronic capsulitis of the left foot, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 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. Withdrawal may be made by the Veteran or by his or her authorized representative on the record at a hearing. 38 C.F.R. § 20.204. In April 2013, the Veteran testified at a Board hearing over which the undersigned Veterans Law Judge presided. At the hearing, the Veteran indicated that he wished to withdraw from appellate consideration the issues of entitlement to initial higher ratings for PTSD, scar status post laminectomy and chronic capsulitis of the left foot. Hence, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and it is dismissed. ORDER The appeal pertaining to the issues of entitlement to initial higher ratings for PTSD, scar status post laminectomy and chronic capsulitis of the left foot, is dismissed. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs