Citation Nr: 1341771 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 10-18 270A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for skin cancer. 2. Entitlement to service connection for fatigue, sleep disturbance, and short term memory loss. 3. Entitlement to service connection for chronic obstructive pulmonary disease. 4. Entitlement to service connection for bronchitis and emphysema. 5. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder and major depressive disorder. 6. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Thomas Andrews, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1969 to December 1971, which included service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in March 2009 and February 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the Veteran's file. The claim for increase for posttraumatic stress disorder and major depressive disorder and the claim for a total disability rating are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT In March 2012 at a hearing and on the record, the Veteran withdrew the appeal on the claims of service connection for skin cancer, fatigue, sleep disturbance, short term memory loss, chronic obstructive pulmonary disease, bronchitis, and emphysema. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran on the claims of service connection for skin cancer, fatigue, sleep disturbance, short term memory loss, chronic obstructive pulmonary disease, bronchitis, and emphysema are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In March 2012 at a hearing on appeal and on the record the Veteran withdrew his appeal on the claims of service connection for skin cancer, fatigue, sleep disturbance, short term memory loss, chronic obstructive pulmonary disease, bronchitis, and emphysema. 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. Withdrawal may be made by the Appellant. 38 C.F.R. § 20.204. The Veteran has properly withdrawn the appeal on the claims of service connection for skin cancer, fatigue, sleep disturbance, short term memory loss, chronic obstructive pulmonary disease, bronchitis, and emphysema. As there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the claims and the appeal of the claims is dismissed. ORDER The appeal of the claims of service connection for skin cancer, fatigue, sleep disturbance, short term memory loss, chronic obstructive pulmonary disease, bronchitis, and emphysema is dismissed. REMAND The Veteran seeks a higher initial rating for service-connected posttraumatic stress disorder and major depressive disorder. In March 2012, the Veteran testified that his service-connected psychiatric disorder had become worse since he was last examined by VA in January 2010. As the evidence suggests a material change in the disability, a reexamination to determine the current severity of the disability is needed. At the hearing, the Veteran also testified that he was unemployable due to his service-connected posttraumatic stress disorder and major depressive disorder. In a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability, the claim is not a separate claim, but a part of a claim for increase. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance with the duty to notify and the duty to assist on the claim for a total disability rating for compensation based on individual unemployability. 2. Afford the Veteran a VA psychiatric examination to determine the current severity of service-connected posttraumatic stress disorder and major depressive disorder. The VA examiner is asked to state whether posttraumatic stress disorder and major depressive disorder renders the Veteran unemployable. The Veteran's file must be made available to the VA examiner. 3. After the above development, adjudicate the claim for increase for posttraumatic stress disorder and major depressive disorder and the claim for a total disability rating under 38 C.F.R. § 4.16(a) or (b), whichever applies. If any benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs