Citation Nr: 1601545 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-05 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased disability rating for cervical strain with spondylosis and disc disease, rated as 10 percent disabling prior to May 25, 2011,and as 30 percent disabling thereafter. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 6. Entitlement to service connection for erectile dysfunction. 7. Entitlement to service connection for hiatal hernia claimed as esophagus hernia, to include as secondary to service connected disabilities. 8. Entitlement to service connection for bilateral inguinal hernia status post repair claimed as inguinal hernia, to include as secondary to the service connected lumbar spine disability. 9. Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to the service connected cervical spine disability. 10. Entitlement to service connection for radiculopathy of the left upper extremity, to include as secondary to the service connected cervical spine disability. 11. Entitlement to service connection for major depression with psychotic features, to include as secondary to service connected disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to October 1983. This appeal is before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for arthritis of multiple joint , to include as secondary to service connected disabilities; service connection for major depression with psychotic feature; service connection for hiatal hernia, service connection for right inguinal hernia; and, service connection for radiculopathy of the bilateral upper extremities, have been raised by the record in February 2015 and August 2015 statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT Prior to the promulgation of a Board decision, the Veteran withdrew in writing his appeal currently pending before the Board. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal of the claims of entitlement to service connection for peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, erectile dysfunction, hiatal hernia claimed as esophagus hernia, to include as secondary to service connected disabilities, bilateral inguinal hernia status post repair claimed as inguinal hernia, to include as secondary to the service connected lumbar spine disability, radiculopathy of the right upper extremity, to include as secondary to the service connected cervical spine disability, radiculopathy of the left upper extremity, to include as secondary to the service connected cervical spine disability, major depression with psychotic features, to include as secondary to service connected disabilities, and the disability rating of cervical spine strain have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. A withdrawal is effective when received. 38 C.F.R. § 20.204(b)(3). In January 2012, the Veteran was issued a Statement of the Case (SOC) as to the issues of the disability rating of the cervical strain, and, entitlement to service connection for bilateral peripheral neuropathy of the upper extremities and lower extremities, service connection for erectile dysfunction, and entitlement to a total disability rating based on individual unemployability (TDIU). He perfected an appeal as to those issues via a Form 9 submitted in March 2012. On February 26, 2014, an SOC as to the issues of entitlement to service connection for major depression, hiatal hernia, bilateral inguinal hernia and radiculopathy of the bilateral upper extremities was issued. The RO also granted entitlement to TDIU via a rating decision issued also on February 26, 2014. Subsequently, the Veteran submitted a VA Form 9 which was received by the RO in March 2014. The Board notes that while the document is signed and dated as 06/03/2014, due to the receipt date stamped by the RO of March 11, 2014, the Board assumes that the Veteran simply inverted the day and month when signing the VA Form 9. Therefore, the Veteran timely perfected his appeal as to those issues in March 2014. In an August 2014 statement, the Veteran stated that "I am notifying you that I wish not to continue with my appeal process on my case or other post-decisional review." He explained he was service connected at 100 percent and wished to remain that way. As this communication reflects that the Veteran was satisfied with the total rating that he had been assigned and that wished to discontinue his pending appeals, the Board construes this statement as a full withdrawal of all appeals pending at that time. This withdraw was effective the date it was received by VA. Subsequent to his withdrawal, the Veteran submitted a February 2015 statement wherein he stated that he had decided to continue with his appeal process and he was invalidating the August 2014 statement. The Veteran listed only five issues as to which he wanted to continue his appeal. However, as noted above, the Veteran had withdrawn his pending appeals. Thus, he had no pending appeals at the time of the February 2015 submission. The Board has considered whether the August 2014 communication could constitute a new timely appeal of the issues previously withdrawn; however, that pursuant to VA regulation a claimant must file an appeal within a year of the rating decision or within sixty (60) days from the issuance of the SOC. See 38 C.F.R. § 20.302(b). This communication was received over one year after the rating decisions that had been on appeal and more than 60 days following the January 2012, January 2014, and February 2014 statements of the case. The Veteran's attempt to rescind his withdrawal of the appeal was received more than 3 years after the January 2012 statement of the case and close to a year after the issuance of the February 2014 statement of the case. In other words, the Veteran's letter requesting a continuance of his appeal, was received well outside of the time limits specified in VA regulations. Therefore, the Board considers the February 2015 statement to be a new claim and has therefore referred the issues to the RO for adjudication as noted above. Having determined that the Veteran withdrew his appeal as of August 2014, and the Veteran's correspondence expressing a desire to continue with the appeal was not timely, there remain no allegations of error for appellate consideration, and the appeal is dismissed. ORDER The appeal as to the issue of entitlement to an increased disability rating for cervical strain with spondylosis and disc disease, rated as 10 percent disabling prior to May 25, 2011, and as 30 percent disabling thereafter, is dismissed. The appeal as to the issue of entitlement to service connection for peripheral neuropathy of the right upper extremity, is dismissed. The appeal as to the issue of entitlement to service connection for peripheral neuropathy of the left upper extremity, is dismissed. The appeal as to the issue of entitlement to service connection for peripheral neuropathy of the left lower extremity, is dismissed. The appeal as to the issue of entitlement to service connection for peripheral neuropathy of the right lower extremity, is dismissed. The appeal as to the issue of entitlement to service connection for erectile dysfunction, is dismissed. The appeal as to the issue of entitlement to service connection for hiatal hernia claimed as esophagus hernia, to include as secondary to service connected disabilities, is dismissed. The appeal as to the issue of entitlement to service connection for bilateral inguinal hernia status post repair claimed as inguinal hernia, to include as secondary to the service connected lumbar spine disability, is dismissed. The appeal as to the issue of entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to the service connected cervical spine disability, is dismissed. The appeal as to the issue of entitlement to service connection for radiculopathy of the left upper extremity, to include as secondary to the service connected cervical spine disability, is dismissed. The appeal as to the issue of entitlement to service connection for major depression with psychotic features, to include as secondary to service connected disabilities, is dismissed. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs