Citation Nr: 1648505	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-00 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to a disability rating in excess of 30 percent for pseudofolliculitis barbae for the period beginning February 23, 2012.

2.  Entitlement to service connection for carpal tunnel syndrome with cubital tunnel syndrome, left upper extremity (claimed as neuropathy), claimed as secondary to service-connected right foot disability.

3.  Entitlement to service connection for carpal tunnel syndrome with cubital tunnel syndrome, right upper extremity (claimed as neuropathy), claimed as secondary to service-connected right foot disability.

4.  Entitlement to service connection for cervical spondylosis with Klippel-Feil syndrome at C2-3 (claimed as neck condition), claimed as secondary to service-connected right foot disability.

5.  Entitlement to service connection for radiculopathy, left upper extremity (claimed as neuropathy), claimed as secondary to service-connected right foot disability.

6.  Entitlement to service connection for bilateral knee osteoarthritis, claimed as secondary to service-connected right foot disability.

7.  Entitlement to service connection for degenerative joint disease of the left hip.

8.  Entitlement to service connection for left foot hallux valgus with pes planus, claimed as secondary to service-connected right foot disability.

9.  Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities.

[The issue of entitlement to vocational rehabilitation benefits under the provisions of Chapter 31, Title 38, United States Code, is the subject of a separate Board remand.]


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Hampton, Associate Counsel




INTRODUCTION

The Veteran served on active duty from January 1977 to May 1977, with additional service in the Reserves.  This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2007 and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

When this case was last before the Board in May 2014, it was remanded for additional development.  The case is now again before the Board for further appellate action.

The Veteran testified at a May 2015 hearing before the undersigned Veterans Law Judge (VLJ) at his local RO (Travel Board hearing) with respect to the issue of entitlement to an increased rating for pseudofolliculitis barbae.  A transcript of the hearing is of record.

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System.

With the exception of the issue of entitlement to a disability rating in excess of 30 percent for psuedofolliculitis barbae for the period beginning February 23, 2012, the Veteran's claims are addressed in the REMAND that follows the ORDER below.


FINDING OF FACT

Prior to a promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to the issue of entitlement to a disability rating in excess of 30 percent for pseudofolliculitis barbae for the period beginning February 23, 2012.




CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to a disability rating in excess of 30 percent for pseudofolliculitis barbae for the period beginning February 23, 2012, have been met.  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

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204(b) (2016).    

The Veteran previously perfected an appeal as to the issue of entitlement to a disability rating in excess of 30 percent for pseudofolliculitis barbae for the period beginning February 23, 2012.  At his May 2015 hearing before the undersigned, however, the Veteran's representative indicated the Veteran's desire to withdraw his appeal with regard to this issue.  As such, the Board finds there remains no allegation of error of fact or law for appellate consideration, and the Board does not have jurisdiction to review the appeal regarding this issue.


ORDER

The appeal for entitlement to a disability rating in excess of 30 percent for pseudofolliculitis barbae for the period beginning February 23, 2012, is dismissed.




REMAND

The Board finds that additional development is required before the Veteran's remaining claims are decided.

In his May 2016 substantive appeal relating to the remaining issues on appeal, with the exception of entitlement to a TDIU, the Veteran requested a videoconference hearing before the Board.  The record does not show any hearing was scheduled, or that the Veteran intended to withdraw his request for a hearing.  Accordingly, as the RO schedules videoconference hearings, a remand is warranted.

The Board finds the Veteran's claim of entitlement to a TDIU is inextricably intertwined with his pending service connection claims.  See 38 U.S.C.A. § 2307 (West 2014); 38 C.F.R. §§ 3.1600(a), (b) (2016).  Specifically, VA's determination as to whether to grant the Veteran's pending claims will bear upon the overall impact of his service-connected conditions on his employability.  Therefore, the claim of entitlement to a TDIU must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter.) 

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following action:

The RO or the AMC should schedule the Veteran for a videoconference hearing in accordance with the docket number of his appeal.  The RO or the AMC must verify the Veteran's current address and provide him adequate notice of the scheduled hearing.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or 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).



_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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