Citation Nr: 0811140 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-08 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a thoracic aortic aneurysm with dissection. 2. Entitlement to service connection for bilateral carpal tunnel syndrome. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD)/hiatal hernia. 4. Entitlement to an increased evaluation for hypertension, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The appellant served on active duty from November 1976 to November 1998. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Louisville, Kentucky, VA Regional Office (RO). The Board notes that in a June 2001 rating decision, the agency of original jurisdiction (AOJ) established an effective date of December 1, 1998 for the grant of a total rating based on individual unemployability, entitlement to special monthly compensation, and entitlement to basic eligibility under Chapter 35. This represents a full grant of the benefits sought in regard to those issues. The issues of entitlement to service connection for GERD/hiatal hernia and bilateral carpal tunnel syndrome, as well as an increased evaluation for hypertension are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In May 2007, prior to the promulgation of a decision in the appeal, the AOJ granted service connection for thoracic aortic aneurysm with dissection, and thus, there is no longer a controversy regarding the benefits sought as to the issue of entitlement to service connection for thoracic aortic aneurysm with dissection. CONCLUSION OF LAW There is no longer an issue of fact or law before the Board pertaining to the claim of entitlement to service connection for thoracic aortic aneurysm with dissection. 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 20.101 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to the veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a) (West 2002 & Supp. 2007). All questions in a matter which under section 511(a) of title 38, United States Code, are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2007). The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007). In addition, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2007). Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a substantive appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (2007). In May 2007, after the appellant filed a substantive appeal in regard to service connection for thoracic aortic aneurysm with dissection, the AOJ granted the claim. Therefore, the issue on appeal in that regard has been resolved and has rendered moot the administrative claim on appeal to the Board. Therefore, having resolved the appellant's claim in his favor, there is no longer a question or controversy remaining. 38 C.F.R. § 3.4 (2007). The Board notes no exceptions to the mootness doctrine present because the relief sought on appeal, the initial award of service connection, has been accomplished without the need for action by the Board. See, e.g., Thomas v. Brown, 9 Vet. App. 269, 270 (1996); Hudgins v. Brown, 365, 367-68 (1995). 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 20.101 (2007). Accordingly, the issue of entitlement to service connection for thoracic aortic aneurysm with dissection is dismissed. ORDER The appeal in regard to service connection for thoracic aortic aneurysm with dissection is dismissed. REMAND Initially, the Board notes that in correspondence received from the appellant's representative in February 2008, it was asserted that service connection for GERD/hiatal hernia and bilateral carpal tunnel syndrome was warranted under provisions to include 38 U.S.C.A. § 1154(b). If the appellant has evidence that he engaged in combat with the enemy, he is informed that he should submit that evidence. Next, the Board notes that appellant was afforded VA examinations in July 2003 at a VA Medical Center (VAMC), at which time carpal tunnel syndrome and a hiatal hernia and reflux were diagnosed. No nexus opinion in regard to either disability was provided. The AOJ's June 14, 2007 request for an opinion in regard to whether the disabilities were related to service reflects that the claims file was being sent back to the VAMC at which the July 2003 examinations were conducted, and states, in pertinent part, the following: General Remarks: CLAIMS FILE BEING SENT FOR REVIEW BY THE EXAMINER. IF THE EXAMINER Deems An Additional Exam is necessary to evaluate the veteran's claims to Carpal Tunnel Syndrome, then please conduct the appropriate exam in addition to the following: Veteran claims service connection for: gastroesophageal reflux/hiatal hernia carpal tunnel syndrome, bilateral upper extremities He has also claimed his carpal tunnel syndrome is a symptom of his service connected pituitary adenoma. The veteran has appealed decisions for service connection for gastroesophageal reflux/hiatal hernia and carpal tunnel syndrome, bilateral upper extremities. He has also claimed his carpal tunnel syndrome is a symptom of his service connected pituitary adenoma. Please provide the following medical opinions. If a physical examination of the veteran is necessary to provide the opinions, please schedule the exams. However, if the examiner can provide the opinions without scheduling the veteran, please do so. An opinion, based upon a review of the claims file, was requested as to whether the appellant's carpal tunnel syndrome of the bilateral upper extremities was directly related to complaints/treatment for pain in his hands during service or was a result of service- connected pituitary adenoma, and whether his gastroesophageal reflux/hiatal hernia was related to the complaints/treatment during service. A June 16, 2007 record from the VAMC notes that the appellant failed to report for scheduled examinations. The Board notes that under the provisions of 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. While the record is silent as to whether or not an examiner determined that an examination was necessary in order to provide the requested opinions, the Board finds that in light of the fact that the appellant reported for the scheduled examinations in July 2003, at which time the examiners reviewed the claims file, noted relevant evidence, to include in-service findings, post-service findings, and the appellant's reported symptoms, and entered diagnoses of the claimed disabilities, a nexus opinion may be obtained without another examination. Stated differently, the July 2003 VA examination report establishes current disability and references relevant in- service findings. The element lacking to substantiate the claims is a competent opinion as to whether the current disabilities are related to service or a service-connected disease or injury. The Board notes that a June 2000 letter reflects that the appellant is in receipt of Social Security Administration (SSA) disability benefits, and in an October 2000 deferred rating decision, the AOJ indicated that the records were being requested. The SSA records have not been associated with the claims file. In addition, the appellant should be sent VCAA notice which complies with Vazquez-Flores v. Peake, No. 05-0355, 2008 (U.S. Vet. App. Jan. 30, 2008), with regard to the increased rating claim. That case states that 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the claims file to the VA examiner who performed the July 2003 examination, if available; otherwise another VA examiner. The examiner's attentions should be directed to this remand. The AOJ should request that the examiner provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that a GERD/hiatal hernia is related to service, and whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that bilateral carpal tunnel syndrome is related to service. A complete rationale should accompany all opinions provided. 2. The AOJ should obtain all SSA records pertinent to the appellant's claims, to include any decisions and the medical records upon which those decisions were based. 3. The appellant should be sent VCAA notice which complies with Vazquez-Flores v. Peake, No. 05-0355, 2008 (U.S. Vet. App. Jan. 30, 2008), with regard to the increased rating claim. This notice should include an explanation as to the evidence required to support a higher evaluation as outlined in Vazquez-Flores. At a minimum, the appellant should be provided the substance of Diagnostic Code 7101. Should it be determined that there is any further notice deficiency in this case, these matters should also be addressed in the duty to assist letter. 4. In light of the above, the claims should be readjudicated. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the appellant afforded a reasonable opportunity in which to respond thereto. 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). 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs