Citation Nr: 1333228	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  11-12 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for onychomycosis.

2.  Entitlement to service connection for lymphedema with cellulitis of the lower extremities, to include as secondary to the service-connected residuals of fracture of the left ankle.

3.  Entitlement to service connection for the residuals of fracture of the right ankle.

4.  Entitlement to service connection for sleep apnea.

5.  Entitlement to an initial evaluation in excess of 30 percent for depressive disorder not otherwise specified.

6.  Entitlement to an initial evaluation in excess of 20 percent for the residuals of fracture of the left ankle.



REPRESENTATION

Appellant represented by:	Christopher Loiacono, Attorney


ATTORNEY FOR THE BOARD

Stephen F. Sylvester, Counsel


INTRODUCTION

The Veteran served on active duty from September 24, to December 23, 1982.

This case comes before the Board of Veterans Appeals' (Board) on appeal of various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In correspondence of August 2013, the Veteran, through his attorney, indicated that he wished to withdraw the issue of entitlement to service connection for sleep apnea.  Accordingly, that issue will be dismissed.

Finally, for reasons which will become apparent, the remaining issues are being REMANDED to the RO for additional development.  VA will notify you if further action is required on your part.


FINDING OF FACT

In August 2013 correspondence, the Veteran, through his attorney, indicated that he wished to withdraw from consideration the issue of entitlement to service connection for sleep apnea.


CONCLUSION OF LAW

The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of entitlement to service connection for sleep apnea have been met.  38 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).


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.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(c).
 
In August 2013, the Veteran, through his attorney, withdrew from consideration the issue of entitlement to service connection for sleep apnea.  As the Veteran has withdrawn his appeal regarding this question, there remain no allegations of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal on that issue, and it is dismissed without prejudice.


ORDER

The appeal as to the issue of entitlement to service connection for sleep apnea is dismissed.


REMAND

On various occasions during the course of this appeal, the Veteran has requested either a Central Office or Travel Board hearing before a Veterans Law Judge.  However, as recently as September 2013, the Veteran has made it clear that he does, in fact, desire a "BVA hearing at a local VA office," which is to say, a Travel Board hearing.  Pursuant to 38 C.F.R. § 20.700 (2013), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  See also 38 U.S.C.A. § 7107 (2013) (pertaining specifically to hearings before the Board).  Inasmuch as the RO schedules Travel Board hearings, a remand of this matter to the RO is in order.

Accordingly, the case is REMANDED to the RO for the following action:

      The RO should take appropriate action to
		schedule the Veteran for a hearing before a traveling
		Veterans Law Judge at the RO located in Huntington,
		West Virginia.  A copy of the letter scheduling the Veteran 
		for that hearing should be included in the claims folder.  His
		representative should also be notified in accordance with 
		applicable procedures.

The appellant 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).

______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs