Citation Nr: 1521508 Decision Date: 05/20/15 Archive Date: 05/26/15 DOCKET NO. 13-29 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cervical spine degenerative disease, C5-6, to include as secondary to a service-connected lumbar spine disability. 2. Entitlement to service connection for neurological deficits, bilateral lower extremities, to include as secondary to a service-connected lumbar spine disability. 3. Entitlement to an initial evaluation for lumbar spine degenerative joint disease with degenerative disc disease, evaluated as 20 percent disabling prior to February 11, 2013 and as 40 percent disabling from February 11, 2013. 4. Entitlement to an initial evaluation in excess of 10 percent for adjustment disorder not otherwise specified. 5. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2010, the RO granted service connection for lumbar spine degenerative joint disease with degenerative disc disease and assigned a 20 percent evaluation, denied service connection for a bilateral leg disability, and denied service connection for a cervical spine disability. In September 2013, the RO increased the lumbar spine evaluation to 40 percent, effective February 11, 2013. In August 2012, the RO granted service connection for adjustment disorder not otherwise specified and assigned a 10 percent evaluation, effective February 22, 2011. In March 2013, the RO denied entitlement to TDIU. The Veteran filed a notice of disagreement (NOD) with respect to this claim, and this will be discussed in the Remand below. At the beginning of the appeal, the Veteran was represented by attorney Edward M. Farmer of Bosley, McKown & Bratch. In an October 2013 VA Form 21-22a, the Veteran appointed attorney Javier A. Centonzio of Bosley & Bratch as his representative, thereby revoking the earlier power of attorney (POA). In a November 2014 VA Form 21-22a, the Veteran appointed attorney Ralph J. Bratch of Bosley & Bratch as his representative, thereby revoking the October 2013 POA. The issues of entitlement to an initial evaluation in excess of 10 percent for adjustment disorder not otherwise specified and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On September 16, 2014, prior to the promulgation of a decision in the appeal, the RO received notification from the Veteran's former attorney that he desired to withdraw from appellate review his appeal of the claims of entitlement to service connection for cervical spine degenerative disease, C5-6; entitlement to service connection for neurological deficits, bilateral lower extremities; and entitlement to an initial evaluation in excess of 20 percent for lumbar spine degenerative joint disease with degenerative disc disease prior to February 11, 2013, and an initial evaluation in excess of 40 percent from February 11, 2013. CONCLUSION OF LAW The criteria are met for withdrawal of an appeal with respect to the issues of entitlement to service connection for cervical spine degenerative disease, C5-6; entitlement to service connection for neurological deficits, bilateral lower extremities; and entitlement to an initial evaluation in excess of 20 percent for lumbar spine degenerative joint disease with degenerative disc disease prior to February 11, 2013, and an initial evaluation in excess of 40 percent from February 11, 2013. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 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 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 authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran's former attorney withdrew this appeal. This was done by a September 16, 2014 statement. Because a withdrawal is effective when received, see 38 C.F.R. § 20.204(b)(3) (2014), there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal of the issues of entitlement to service connection for cervical spine degenerative disease, C5-6; entitlement to service connection for neurological deficits, bilateral lower extremities; and entitlement to an initial evaluation in excess of 20 percent for lumbar spine degenerative joint disease with degenerative disc disease prior to February 11, 2013, and an initial evaluation in excess of 40 percent from February 11, 2013, is dismissed. REMAND With respect to the increased rating claim, there are outstanding records that need to be obtained. In a September 2014 correspondence, the Veteran's former attorney referenced VA treatment records dated in August 2013. He asserted that these records support a 50 percent evaluation. The most recent VA treatment records are dated in August 2012. All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, the Veteran's current VA treatment records should be obtained and associated with the claims file. With respect to the TDIU claim, in a March 2013 rating decision, the RO denied entitlement to TDIU. In a March 2014 correspondence, the Veteran's former attorney indicated that he disagreed with the rating decision. The Board construes the March 2014 correspondence as a timely NOD with the March 2013 rating decision. Thus, the March 2013 rating decision remains pending, and the RO is required to send the Veteran a statement of the case (SOC) in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. Where an NOD has been submitted, the veteran is entitled to an SOC. The failure to issue an SOC is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment from all VA mental health care providers since September 2012. All pertinent records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If these records cannot be obtained, a notation to that effect should be inserted in the file. 2. Issue an SOC to the Veteran and his attorney addressing the issue of entitlement to TDIU. The Veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b). If, and only if, the appeal is perfected by a timely filed substantive appeal, this issue should be certified to the Board. 3. Then, readjudicate the claims on appeal. If either of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his attorney the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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 2014). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs