Citation Nr: 1627316	
Decision Date: 07/08/16    Archive Date: 07/14/16

DOCKET NO.  08-12 849	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to an increased rating for prostatitis.

2.  Entitlement to service connection for a urethral disorder, to include urethritis and urethral stricture.

3.  Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease, gastritis, and duodenitis.

4.  Entitlement to service connection for a lumbosacral spine disorder, to include degenerative arthritis of the lumbosacral spine.  

5.  Entitlement to an initial compensable evaluation for staphylococcus infection.

[The issue of entitlement to vocational rehabilitation and education services is addressed in a separate decision.]  



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel


INTRODUCTION

The Veteran served on active duty from January 1970 to January 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

Board hearings were held in March 2011 and June 2015.  Transcripts are of record.

The issues of entitlement to (1) service connection for a urethral disorder, to include urethritis and urethral stricture; (2) service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease, gastritis, and duodenitis; (3) service connection for a lumbosacral spine disorder, to include degenerative arthritis of the lumbosacral spine, and (4) an initial compensable evaluation for staphylococcus infection are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

On June 23, 2015, prior to the promulgation of a decision involving the claim for an increased rating for prostatitis, the Board received notification from the Veteran that a withdrawal of this issue was requested.


CONCLUSION OF LAW

The criteria for withdrawal of the claim for an increased rating for prostatitis have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


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 (2015).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2015).  

In the present case, the Veteran testified at the March 2011 hearing before the undersigned as to why he felt he was entitled to higher ratings for the service-connected prostatis.  In December 2014, the AOJ granted a higher rating for prostatitis.  At the June 23, 2015, hearing before a second Veterans Law Judge, the Veteran withdrew the claim for increase for prostatitis, stating that he was satisfied with the December 2014 action by the AOJ.  Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed.



ORDER

The claim for an increased rating for prostatitis is dismissed.


REMAND

In March 2011, the Veteran had a hearing before the undersigned, during which the issues of (1) entitlement to service connection for a urethral disorder, to include urethritis and urethral stricture; (2) entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease, gastritis, and duodenitis; and (3) entitlement to service connection for a lumbosacral spine disorder, to include degenerative arthritis of the lumbosacral spine were discussed.  The Veteran was scheduled for a Board hearing in July 2015 on the issue of entitlement to vocational rehabilitation and education services; however, only the same three issues that were discussed at the March 2011 hearing were discussed at the July 2015 hearing.  

All Veterans Law Judges (VLJs) who conduct hearings must participate in making the final determination of the claims on which testimony was received.  38 U.S.C.A § 7107(c); 38 C.F.R. § 20.707.  By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members.  See 38 U.S.C.A. § 7102(a).  Because the Veteran has had hearings before two separate VLJs during the appeal and these hearings covered the same three issues, a third VLJ must be assigned to the panel.  In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court of Appeals for Veterans Claims interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision.  

The Veteran was advised in a February 2016 letter of his right to another hearing before a third VLJ pursuant to Arneson.  In March 2016, he requested a third Travel Board hearing.  Accordingly, a new hearing must be scheduled.

In a separate decision issued simultaneously with this one, the Board is remanding the issue of entitlement to vocational rehabilitation and education services a second time because the Veteran has not been provided an opportunity to testify on this issue.  In his March 2016 response requesting a third Board hearing, the Veteran made it clear he still wanted to provide testimony on this issue.  Therefore, entitlement to vocational rehabilitation and education services should be addressed at the same Board hearing that addresses the issues of (1) entitlement to service connection for a urethral disorder, to include urethritis and urethral stricture; (2) entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease, gastritis, and duodenitis; and (3) entitlement to service connection for a lumbosacral spine disorder.  

Finally, the Veteran recently perfected an appeal in connection with the issue of entitlement to an initial compensable evaluation for staphylococcus infection on June 7, 2016.  See VA Form 9, Appeal to the Board of Veterans' Appeals.  In the VA Form 9 for this issue, he requested an in-person hearing before the Board at the Portland RO.  Thus, this issue should be discussed at the hearing before the Veterans Law Judge.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a hearing at the RO before a Veterans Law Judge, as requested by the Veteran.  The issues to be discussed are as follows: (1) entitlement to service connection for a urethral disorder, to include urethritis and urethral stricture; (2) entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease, gastritis, and duodenitis; (3) entitlement to service connection for a lumbosacral spine disorder, to include degenerative arthritis of the lumbosacral spine; (4) entitlement to an initial compensable evaluation for staphylococcus infection; and (5) entitlement to vocational rehabilitation and education services.  

Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.

The Veteran 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).



________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs