Citation Nr: 1335023 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-15 836 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to dysthymia and/or a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from July 1976 to April 1982. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Multiple other issues are in various stages of development. This is the only issue certified or otherwise before the Board at this time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's claim seeking service connection for erectile dysfunction was denied by a June 2009 rating decision. He timely filed a notice of disagreement and a statement of the case was issued. In December 2009, the Veteran filed a VA form I-9 (in which he indicated that he did not want to continue his claim and requesting that his case be closed). In January 2010, he submitted a signed statement in which he stated that he wished to withdraw all pending appeals, which clearly encompassed his claim for service connection for erectile dysfunction. In March 2010, the Veteran submitted a statement asking that his appeal for service connection for erectile dysfunction be reactivated. Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204. However, withdrawal does not preclude filing a new notice of disagreement and, after a statement of the case is issued, a new substantive appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. Id. Here, the Veteran's withdrawal in January 2010 effectively withdrew both his notice of disagreement and his substantive appeal, to the extent that one was filed. However, once this is done, from a plain reading of the regulation, he is required to begin anew his appeal of the rating decision denying the benefit he is seeking by filing a new notice of disagreement. As such, the Veteran's March 2010 submission seeking to "reactivate" is claim is considered to be a notice of disagreement, and therefore a statement of the case must be issued. 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a). Thus, because the notice of disagreement is still pending, a remand is warranted to provide the Veteran with a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The Board also notes that prior to issuing the statement of the case, the AOJ should consider whether clarification is needed for either of the May 2009 VA medical opinions to specifically consider the question of whether the Veteran's service connected back and/or psychiatric disability aggravated his erectile dysfunction. Accordingly, the case is REMANDED for the following action: 1. Consider whether clarification is needed for either of the May 2009 VA medical opinions to specifically consider the question of whether the Veteran's service connected back and/or psychiatric disability aggravated his erectile dysfunction. 2. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a statement of the case and allow an appropriate time for response. The Veteran should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be returned to the Board. If one is filed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if otherwise appropriate. The Veteran has the right to submit additional evidence and argument on the matter 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. _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).