Citation Nr: 1736152	
Decision Date: 08/30/17    Archive Date: 09/06/17

DOCKET NO.  10-30 774	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an initial compensable disability rating for residuals of a ventral hernia repair, claimed as a stomach muscle injury.
 
2.  Entitlement to an initial rating in excess of 10 percent for residual scar, status post ventral hernia repair.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

S.Wainaina, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from April 1965 to March 1969.

These matters come before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  By that rating action, the RO granted service connection for residuals of a ventral hernia repair (originally claimed as a stomach muscle injury) and scar, status-post ventral hernia repair; each disability was assigned an initial noncompensable rating, effective January 25, 2008--the date VA received the Veteran's initial claim for compensation for these disabilities.  The Veteran appealed the initial noncompensable ratings assigned to the above-cited disabilities to the Board.  Jurisdiction of the appeal currently resides with the Pittsburgh, Pennsylvania RO.

The Veteran testified before the undersigned Veterans Law Judge in September 2011.  A copy of the hearing transcript is of record.

In December 2013, the Board remanded the appeal for additional substantive development.  The requested development was undertaken, and the appeal was returned to the Board for further appellate consideration. 

By a March 2014 rating action, the RO assigned an initial 10 percent rating to the service-connected scar, status-post ventral hernia repair, effective January 25, 2008.  A veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded unless the veteran expresses an intent to 

limit the appeal to entitlement to a specific disability rating.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  In view of the foregoing, the Board has recharacterized this claim to reflect the RO's award of an initial 10 percent rating since the award of service connection.  

In September 2016 the Board remanded the appeal for additional substantive development.  The requested development was undertaken, and the appeal has returned to the Board for further appellate consideration. 

The appeal on the matter of entitlement to an initial compensable disability rating for residuals of a ventral hernia repair, claimed as muscle injury is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

The Veteran withdrew his claim for entitlement to an initial rating in excess of 10 percent for residual scar, status post ventral hernia in a letter dated April 2017. 


CONCLUSION OF LAW

Regarding the claim of entitlement to an initial rating in excess of 10 percent for residual scar, status post ventral hernia repair, the criteria for withdrawal of an appeal by the appellant are met; the Board has no further jurisdiction with respect to this claim.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). However, given the Veteran's expression of intent to withdraw the claims decided herein, further discussion of the impact of VA's duties to notify and assist on the matter is not necessary.

II. Withdrawn Issue

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed.  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(a).  An appeal may be withdrawn on the record at a hearing or in a written document.  38 C.F.R. § 20.204(b)(1).

Here, the Veteran withdrew his claim for entitlement to an initial rating in excess of 10 percent for residual scar, status post ventral hernia repair, in a letter dated April 2017.  

When pending appeals are withdrawn, there is no longer an allegation of error of fact or law with respect to the decision below.  In such circumstances, dismissal of the appeal is appropriate. 38 U.S.C.A. § 7105(d)(5). 

The Board finds that the Veteran's claim for entitlement to an initial rating in excess of 10 percent for residual scar, status post ventral hernia repair, is withdrawn and dismissed accordingly. 



ORDER

The claim of entitlement to an initial rating in excess of 10 percent for residual scar, status post ventral hernia repair, is dismissed. 


REMAND

In a report of general information dated October 2016, a VA employee noted that the Veteran called, requesting a local hearing.  A hearing has not been scheduled. 

Accordingly, the case is REMANDED for the following action:

1. Following clarification with the Veteran, schedule him for a hearing before a Decision Review Officer (DRO) at the RO or before the Board (videoconference or Travel Board), whichever he requests.  Provide the Veteran and his representative with appropriate notice of the hearing date, time and location and associate a copy of that notice with the claims file. 

2.  Then, take any necessary action, to include issuance of a supplemental statement of the case if the Veteran selects a DRO hearing.  Thereafter, the case should be returned to the Board for further review, if in order.

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).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs