Citation Nr: 1804738	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-19 829	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for tinea versicolor.

2.  Entitlement to service connection for a left thumb injury.

3.  Entitlement to service connection for a groin injury.

4.  Entitlement to service connection for a chest injury.

5.  Entitlement to service connection for mid and low back pain.

6.  Entitlement to service connection for a left wrist injury.


REPRESENTATION

Appellant represented by:	Catholic War Veterans of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 2000 to August 2006.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  In a September 2017 hearing, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A copy of the hearing transcript is of record and has been reviewed.

The issues of entitlement to service connection for a groin injury, chest injury, mid and low back pain, and a left wrist injury are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In September 2017, the Board received notification from the Veteran that a withdrawal of the claim for entitlement to service connection for tinea versicolor was requested.

2.  In September 2017, the Board received notification from the Veteran that a withdrawal of the claim for entitlement to service connection for a left thumb injury was requested.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Appellant (or his or her authorized representative), for entitlement to service connection for tinea versicolor have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for withdrawal of an appeal by the Appellant (or his or her authorized representative), for entitlement to service connection for a left thumb injury have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


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. § 7105 (2012).  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 (2017).  Withdrawal may be made by the claimant or by his or her authorized representative.  38 C.F.R. 
§ 20.204 (2017).
  
In the present case, the Veteran's two noted issues on appeal were withdrawn during the September 2017 hearing.  While withdrawal of a substantive appeal must be withdrawn "in writing," the Board notes that in Tomlin v. Brown, 5 Vet. App. 355 (1993), the U.S. Court of Appeals for Veterans Claims (Court) held that a statement on the record at a 1988 hearing, once reduced to writing, became a statement "in writing" for purposes of satisfying that element of a regulation's procedural requirement.  Id. at 357-58 (finding that the "oral statement of appellant's accredited representative ... meets the statutory definition of a written NOD (Notice of Disagreement).  It was timely, it was addressed to the AOJ, and it was presented by appellant's accredited representative.  When it was transcribed ... it met the remaining statutory requirement that it be 'in writing'").  

Although the issue in Tomlin was the validity of a Notice of Disagreement (NOD) and not the withdrawal of a substantive appeal, the Board notes that the procedural requirements set forth by the relevant regulations are substantively identical, requiring only that the intent to file a NOD or withdraw an appeal be made "in writing."  See 38 C.F.R. § 20.201 (2017) (requiring a "written communication from a claimant or his or her representative" to establish a valid NOD); 38 C.F.R. 
§ 20.204(b) (2017) (requiring that a withdrawal of a substantive appeal be done "in writing").  Common sense would dictate that statements made at a hearing indicating the Veteran's clear desire to withdraw a claim would have the same effect, once reduced to writing in the form of a transcript, as the reduction to writing of a representative's statement on the record that a claimant wished to file a NOD.  See Tomlin, 5 Vet. App. at 357-58.  The Board concludes that the Veteran has withdrawn his claims of entitlement to service connection for tinea versicolor and a left thumb injury, and there remain no allegations of errors of fact or law as to these issues for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the claims, and they are dismissed.


ORDER

The appeal for entitlement to service connection for tinea versicolor is dismissed.

The appeal for entitlement to service connection for a left thumb injury is dismissed.


REMAND

Concerning the claims for entitlement to service connection for a groin injury, a chest injury, mid and low back pain, and a left wrist injury, the Board notes that during his September 2017 hearing, the Veteran testified that he was injured during active service.  Additionally, the February 2009 and January 2010 rating decisions concede that the Veteran was treated during service.  While the Veteran had a cursory VA examination in November 2009, the examiner's opinion is unclear.  The examiner noted that the Veteran's service medical records were reviewed and opined that the Veteran's current conditions had their first manifestations while in service, as there was no apparent cause.  However, in the examination report, it was marked that the Veteran had a "normal" examination.  New examinations are necessary to determine what, if any, disabilities the Veteran has, and whether they are etiologically related to the Veteran's injuries and treatment during active service.

Accordingly, the case is REMANDED for the following actions:

1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning the claims on appeal.

2. After the above has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed conditions concerning his claims for a groin injury, chest injury, mid and low back pain, and a left wrist injury.  

Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case.  A notation to the effect that this review took place should be included in the report.  

For each of the four claimed disorders, the examiner must clarify whether there exists a current diagnosis.  If no current diagnosis is rendered for one or more of the claimed disorders, this must be explained in the context of the record (particularly the November 2009 examination report) and the Veteran's own contentions.

For each diagnosed disability, an opinion must be provided as to whether such disability is at least as likely as not (a 50 percent or greater probability) caused by or etiologically related to the Veteran's active service.  A complete rationale for each opinion must be provided.

3. After the completion of the above development, and any other development deemed necessary, furnish the Veteran with a supplemental statement of the case and give him an opportunity to respond before the case is returned to the Board.

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).

These claims 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. §§ 5109B, 7112 (2012).



______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs