Citation Nr: 1511085	
Decision Date: 03/16/15    Archive Date: 03/27/15

DOCKET NO.  08-40 005	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to a higher initial rating for a lumbar strain, rated as 20 percent disabling prior to February 8, 2012; and rated 40 percent disabling effective February 8, 2012.
 
2.  Entitlement to a higher initial rating for left leg sciatic neuritis, currently rated as 10 percent disabling. 

3.  Whether new and material evidence had been received to reopen the Veteran's claim for entitlement to service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Eleanor Donati Flechas, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from March 1980 to June 1980; and from September 1980 to December 1980 (the latter of which was found to not be honorable service).

The low back claim come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's service connection claim for lumbar strain, and assigned a 20 percent rating, effective August 17, 2006 (the date of the claim).  

The Veteran presented testimony at a Board hearing in February 2012.  A transcript of the hearing is associated with the Veteran's claims folder. 

The Board issued a decision in November 2012 in which it denied an increased rating for his lumbar strain prior to February 8, 2012; it granted an increased rating (to 40 percent) effective February 8, 2012; and it granted a separate 10 percent rating left leg sciatic neuritis, which was implemented in a January 2013 rating decision.

In January 2014, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision to the extent that it denied (1) a rating in excess of 20 percent prior to February 8, 2012 for the Veteran's lumbar strain; (2) a rating in excess of 40 percent effective February 8, 2012 for the Veteran's lumbar strain; and (3) a rating in excess of 10 percent for the Veteran's left leg sciatic neuritis. 

In July 2014, the Board remanded the increased rating claims for a new VA examination, as per the CAVC decision.

In a January 2008 rating decision, the RO denied service connection for PTSD.  In December 2010, he filed an informal claim for PTSD.  In a February 2014 rating decision, the RO continued to deny the claim.  The Veteran filed a timely notice of disagreement in November 2014.  The RO has yet to issue a statement of the case in response to the Veteran's disagreement.  Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).  Consequently, the issue must be remanded.

In November 2014, the Veteran filed a claim for a TDIU.  The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability.  Id.  As such, the Board has added the issue of entitlement to a TDIU rating.  The Board recognizes that the Veteran has withdrawn the claims for increased compensation upon which the TDIU claim was attached.  However, the Board took jurisdiction over the issue when the Veteran appealed the claims for increased compensation.  The Veteran did not withdraw the issue of entitlement to a TDIU.  Consequently, it remains in appellate status.  (The Board also notes that the RO issued a March 2015 rating decision in which it denied entitlement to a TDIU).  

Finally, by way of an October 2014 rating decision, the RO denied service connection for diabetes mellitus, an aortic aneurysm, and hypertension.  The Veteran has not filed a disagreement with regard to these issues.  Consequently, they are not before the Board. 

The issues of whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for PTSD, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On January 30, 2015, prior to the promulgation of a decision, the Board received notification from the appellant, that a withdrawal of the issue of entitlement to a higher initial rating for a lumbar strain was requested.

2.  On January 30, 2015, prior to the promulgation of a decision, the Board received notification from the appellant, that a withdrawal of the issue of entitlement to a higher initial rating for left leg sciatic neuritis was requested.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal of the issue of entitlement to a higher initial rating for a lumbar strain by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2014); 38 C.F.R. § 20.204 (2014).

2.  The criteria for withdrawal of an appeal of the issue of entitlement to a higher initial rating for left leg sciatic neuritis by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2014); 38 C.F.R. § 20.204 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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 & Supp. 2014).  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 (2014).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant, in a January 2015 correspondence, stated that he was withdrawing his appeal on the issues of entitlement to higher initial ratings for a lumbar strain and left leg sciatic neuritis.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed.


ORDER

The issue of entitlement to a higher initial rating for a lumbar strain is dismissed.

The issue of entitlement to a higher initial rating for left leg sciatic neuritis is dismissed.


REMAND

PTSD
As noted in the introduction, the RO issued a February 2014 rating decision denying service connection for PTSD.  The Veteran filed a timely notice of disagreement in November 2014.  The RO has yet to issue a statement of the case in response to the Veteran's disagreement.  Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).  Consequently, the issue must be remanded.

TDIU
The Veteran's claim for a TDIU is dependent on whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation.  As such, the claim is inextricably intertwined with the issue of whether service connection is warranted for PTSD.

Accordingly, the case is REMANDED for the following action:

1.  The RO should take appropriate action, including issuance of a statement of the case, on the issue of whether new and material evidence has been received to reopen a service connection claim for PTSD.  The Veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the Veteran wishes to complete an appeal from the determination.    

2.  After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted.  If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review.  

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 2014).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs