Citation Nr: 0813363 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 07-02 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for Paget's disease of the lumbar spine. 2. Entitlement to service connection for acute back strain. 3. Entitlement to service connection for cramps and pain of the right leg and hip. 4. Entitlement to service connection for cramps and pain of the left leg and hip. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from October 1950 to December 1950 and from October 1951 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran testified before the undersigned at a Board hearing at the RO in March 2008. A transcript of the hearing is of record. The issue of entitlement to service connection for Paget's disease of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In correspondence received on March 5, 2008, prior to the promulgation of a decision in the appeal, the veteran withdrew the appeal of the issues of entitlement to service connection for acute back strain, cramps and pain of the right leg and hip and cramps and pain of the left leg and hip. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to service connection for acute back strain. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2007). 2. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to service connection for cramps and pain of the right leg and hip. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2007). 3. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to service connection for cramps and pains of the left leg and hip. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which 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. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2007). The appellant has withdrawn the issues of service connection for acute back strain, cramps and pains of the right leg and hip and cramps and pains of the left leg and hip; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and the appeal is dismissed. ORDER The issue of entitlement to service connection for acute back strain is dismissed. The issue of entitlement to service connection for cramps and pain of the right leg and hip is dismissed. The issue of entitlement to service connection for cramps and pain of the left leg and hip is dismissed. REMAND The veteran contends that his currently diagnosed Paget's disease of the lumbar spine is etiologically related to his active service. He essentially argues that he experienced symptoms of Paget's disease while in service, and was not correctly diagnosed with the disorder until years after separation from active duty. VA's duty to assist includes obtaining thorough and contemporaneous examinations in order to determine the nature and extent of the veteran's disabilities. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). The veteran was provided a VA examination in September 2005. However, this examination was conducted by a nurse practitioner, and focused on whether the veteran's current Paget's disease is secondary to Bowen disease, which was diagnosed in service. The veteran has submitted a February 2008 statement by his treating physician, Dr. Toussaint, opining that the veteran's Paget's disease "could well have started while he was in service." As Dr. Toussaint's statement raises the possibility that the veteran's Paget's disease is related to his active service, the veteran should be afforded a VA examination to determine whether there is an etiological relationship between his currently diagnosed Paget's disease and his active service. As a final note, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that VCAA notice must include notice regarding the disability rating and the effective date. The Board notes that no such notice was provided to the veteran. Thus, on remand, notice regarding the disability rating and effective date should be sent to the veteran. Accordingly, the case is REMANDED for the following action: 1. The AOJ should review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the AOJ should ensure that the notification requirements and development procedures contained in the Court's decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) are fully met. 2. Schedule the veteran for a VA examination, to be conducted by a VA physician, for the purpose of ascertaining the etiology of his Paget's disease. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. Any necessary testing should be accomplished. After reviewing the record and examining the veteran, the examiner should provide an opinion as to whether the veteran's Paget's disease 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), etiologically related to his active service. A detailed rationale should be provided for all opinions. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 3. Upon completion of the above, the AOJ should readjudicate the issue on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. 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). 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.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs