Citation Nr: 21029434 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-36 161 DATE: May 13, 2021 ORDER Entitlement to service connection for asthma is dismissed. Entitlement to service connection for bronchitis is dismissed. Entitlement to service connection for a heart condition is dismissed. Entitlement to service connection for neuropathy of the left lower extremity is dismissed. Entitlement to service connection for neuropathy of the right lower extremity is dismissed. Entitlement to service connection for a liver tumor is dismissed. Entitlement to service connection for diabetes is dismissed. Entitlement to service connection for a foot fungus is dismissed. REMANDED Entitlement to service connection for a thorax injury is remanded. Entitlement to service connection for tinnitus, to include whether new and material evidence has been received to reopen the claim, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bilateral hearing loss, to include whether new and material evidence has been received to reopen the claim, is remanded. Entitlement to service connection for a lumbar spine injury, to include whether new and material evidence has been received to reopen the claim, is remanded. Entitlement to service connection for a left eye disability, to include whether new and material evidence has been received to reopen the claim, is remanded. Entitlement to an increased rating in excess of 10 percent for residuals of welder's flashes of the right eye is remanded. FINDING OF FACT On September 10, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran requesting withdrawal of the appeal for service connection for asthma, bronchitis, a heart condition, neuropathy of the lower extremities, a liver tumor, diabetes, and a foot fungus. CONCLUSION OF LAW The criteria are met for withdrawal of the appeal for service connection for asthma, bronchitis, a heart condition, neuropathy of the bilateral lower extremities, a liver tumor, diabetes, and a foot fungus. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to October 1972. These matters are on appeal to the Board of Veterans' Appeals (Board) from an October 2014 rating decision. A hearing was held before the undersigned Veterans Law Judge in September 2020. At the outset, the Board notes that the Veteran's claims for service connection for PTSD (now framed as an acquired psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009)), hearing loss, tinnitus, and a liver tumor have been erroneously characterized as a motion for clear and unmistakable error (CUE) in the record. The Veteran filed a Notice of Disagreement in November 2014, one month after the issuance of the rating decision denying the claims, and stated he "believes an unmistakable error occurred" in the October 2014 decision regarding those claims. However, as this statement of disagreement was made within a year of the issuance of the October 2014 rating decision at issue, the October 2014 rating decision did not become a final decision. A CUE claim cannot be filed as to a matter that is still appealable or pending. See May v. Nicholson, 19 Vet. App. 310, 317 (2005) (stating that a CUE claim "cannot lie as to a decision that is still open to direct review"). As the October 2014 rating decision was not final, the claims will be addressed on the merits, rather than as a CUE motion. 1. Entitlement to service connection for asthma is dismissed. 2. Entitlement to service connection for bronchitis is dismissed. 3. Entitlement to service connection for a heart condition is dismissed. 4. Entitlement to service connection for neuropathy of the left lower extremity is dismissed. 5. Entitlement to service connection for neuropathy of the right lower extremity is dismissed. 6. Entitlement to service connection for a liver tumor is dismissed. 7. Entitlement to service connection for diabetes is dismissed. 8. Entitlement to service connection for a foot fungus is dismissed. At the September 2020 Board hearing, the Veteran's representative clearly and unambiguously stated the Veteran was withdrawing the appealed issues of service connection for neuropathy of the bilateral lower extremities, diabetes, bronchitis, foot fungus, liver tumor or cyst, asthma, and a heart disorder. The issues remaining on appeal were clearly identified and were the only issues discussed at the hearing. Accordingly, the Board finds that the Veteran withdrew the appeal for the above-listed issues at the September 2020 hearing. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (an oral withdrawal of a claim is effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant). 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. § 7105. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, as it pertains to the above-listed issues, the Veteran has withdrawn the appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and they are dismissed. REASONS FOR REMAND 9. Entitlement to service connection for a thorax injury is remanded. 10. Entitlement to service connection for tinnitus, to include whether new and material evidence has been received to reopen the claim, is remanded. 11. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. 12. Entitlement to service connection for bilateral hearing loss, to include whether new and material evidence has been received to reopen the claim, is remanded. 13. Entitlement to service connection for a lumbar spine injury, to include whether new and material evidence has been received to reopen the claim, is remanded. 14. Entitlement to service connection for a left eye disability, to include whether new and material evidence has been received to reopen the claim, is remanded. 15. Entitlement to an increased rating in excess of 10 percent for residuals of welder's flashes of the right eye is remanded. Since the issuance of a June 2018 Statement of the Case, additional evidence has been associated with the record, accompanied by a VA Form 9 Substantive Appeal, that has not been considered by the Agency of Original Jurisdiction (AOJ). In December 2019 correspondence, the Veteran's representative expressly indicated he did not waive Regional Office Consideration of the additional evidence. The (legacy) appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). The Board recognizes that 38 U.S.C. § 7105(e) provides that if new evidence is submitted with or after a Substantive Appeal, as in the instant case, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, the Veteran explicitly requested AOJ consideration. As such, in order to afford the Veteran the full procedural rights, the AOJ will consider and address all of the evidence of record in an appropriate supplemental statement of the case (SSOC). See 38 C.F.R. § 19.31. The matters are REMANDED for the following action: Readjudicate the claims remaining on appeal. If an issue remains denied, the Veteran and his representative should be provided with a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.