Citation Nr: 1337127	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-31 729A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 60 percent disabling since September 2, 2003.

2.  Entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 40 percent disabling prior to September 2, 2003.

3.  Entitlement to a total disability rating for compensation purposes based on individual unemployability due to a service-connected disability (TDIU) prior to September 2, 2003.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Esq.




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to January 1958.  

This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered in February 1978 and February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In September 1978, the Veteran testified before a three-person rating board at the RO, and a transcript of that hearing has been associated with his claims file.

In August 2011, the Board remanded the claims for further development.

The review of the case includes the paper and electronic records.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to an increased rating for intervertebral disc syndrome of the lumbar spine prior to September 2, 2003, and entitlement to TDIU prior to September 2, 2003, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

In a statement dated in August 2011 and October 2013, the Veteran's counsel withdrew the issue of entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 60 percent disabling since September 2, 2003.


CONCLUSION OF LAW

The criteria for withdrawal of the issues of entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 60 percent disabling since September 2, 2003, by the appellant's counsel have been met.  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 (West 2002).  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 (2012).  Withdrawal may be made by the appellant or his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, following the Board's August 2011 remand, the Veteran's attorney submitted a statement indicating that the appellant did not wish to continue the appeal of the issue of entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 60 percent disabling since September 2, 2003.  Likewise, in an October 2013 statement, his attorney wrote that the Veteran had been granted TDIU from September 2, 2003 onward and was "satisfied with the schedular rating assigned during this time period."  

These communications show satisfaction with the assignment of the 60 percent evaluation from September 2, 2003, and a desire to remove that portion of his claim from appellate status.  Thus these communications constitute a valid withdraw of this issue pursuant to 38 C.F.R. § 20.204.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  

Accordingly, the Board does not have jurisdiction to review the appeal of issue of entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 60 percent disabling since September 2, 2003; and it is dismissed.


ORDER

The appeal of issue of entitlement to an increased evaluation for intervertebral disc syndrome of the lumbar spine, evaluated as 60 percent disabling since September 2, 2003, is dismissed.


REMAND

The Board directed the RO obtain all records identified by the Veteran from 1977 to 2003, to include VA treatment.  In an August 2013 statement, the appellant's counsel indicated that the majority of the claimant's treatment from 1977 to 2003 occurred at the Wade Park campus of the Louis Stokes Cleveland VA Medical Center.  The RO obtained all available records from that facility from 1977 to January 1989 and from April 2002 to the present.  The RO did not request any records from February 1989 to March 2002 apparently because the electronic records contains an X-ray report of the right knee dated in February 1989 but no other records dated between February 1989 and March 2002.  Therefore, the RO did not comply with the directives of the Board remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Given that the Veteran claims that he has not been employed since 1975, the RO should attempt to obtain any records from the Social Security Administration regarding any claim he had made for disability benefits.

In a February 2013 supplement statement of the case, the RO did not consider whether the TDIU claim should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) (2013).  Moreover, the RO did not consider the lumbar spine disability claim under the old criteria for rating spinal disabilities in that supplemental statement of the case.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Obtain all records from the Wade Park campus of the Louis Stokes Cleveland VA Medical Center from February 1989 to March 2002.

2.  Obtain any records from the Social Security Administration regarding any claim the Veteran had made for disability benefits.

3.  Thereafter, review the additional evidence and undertake any necessary additional development and readjudicate the issues on appeal, with consideration of the rating criteria for rating intervertebral disc syndrome prior to September 23, 2002, and the rating criteria for rating intervertebral disc syndrome effective from September 23, 2002, and, if applicable, consideration of whether the TDIU claim should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) (2013).  If any benefit is not granted, the appellant should be furnished with a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).




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

Department of Veterans Affairs