Citation Nr: 1806409	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-28 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.   Entitlement to an evaluation in excess of 20 percent for lumbar degenerative joint disease.

2.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse



ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to August 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from    October 2010 and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  

In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of this hearing has been associated with the electronic claims file.

The issue of entitlement to an evaluation in excess of 20 percent for lumbar degenerative joint disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At the October 2017 Travel Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, acting through his representative, requested withdrawal of the appeal of the issue of entitlement to TDIU.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal of the issue of entitlement to TDIU have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


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. § 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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).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 appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  At the October 2017 Travel Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, acting through his representative, requested withdrawal of the appeal of the issue of entitlement to TDIU.  Hence, there remains no allegation of error of fact or law for appellate consideration of this issue.  Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed.


ORDER

The claim for entitlement to TDIU is dismissed.


REMAND

The Veteran is seeking an increased evaluation for his lumbar degenerative joint disease.  

The Veteran's most recent VA back examination was performed in September 2010. The Veteran testified that his lumbar spine disability has significantly worsened since his most recent VA examination of the spine.  Accordingly, the Board finds that a remand is required in order to afford the Veteran a VA examination for his low back.

Relevant ongoing medical records should also be requested.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and addresses    of all medical care providers who have treated him for his lumbar degenerative joint disease since June 2013. After securing any necessary releases, the AOJ should request any relevant records identified.  Updated VA treatment records should also be obtained.  If any requested records are unavailable, the Veteran should be notified of such.

2.  Thereafter, schedule the Veteran for a VA back examination to determine the current severity of his   service-connected lumbar degenerative joint disease.       The electronic claims file must be reviewed by the examiner. All indicated tests must be conducted and           the results reported. The examiner should also address whether there is likely to be additional range of motion    loss as a result of pain, weakness, incoordination, fatigability, or during flare-ups. If so, the examiner is      asked to describe the additional loss in terms of degrees,       if possible.

3.  After undertaking any additional development deemed necessary, the AOJ must readjudicate the claim remaining on appeal.  If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).




_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs