Citation Nr: 0813671 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-37 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. What evaluation is warranted for a left ear hearing loss from May 1, 2003? 2. What evaluation is warranted for hemorrhoids from May 1, 2003? 3. What evaluation is warranted for coronary artery disease with hypertension, status post coronary artery bypass graft from May 1, 2003? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran performed active duty from August 1981 to April 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In the June 2003 rating decision service connection was granted for the disorders at issue. As the veteran perfected an appeal to the initial ratings assigned following the grants of service connection the Board has characterized these issues in accordance with the decision of the United States Court of Appeals for Veterans Claims (Court) in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of compensation. For the reasons outlined below, this appeal is, in part, REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. FINDING OF FACT In June 2007, prior to promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the veteran that a withdrawal of his appeal concerning the issues of entitlement to increased ratings for a left ear hearing loss and hemorrhoids was requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant concerning entitlement to an increased rating for a left ear hearing loss have been met. 38 U.S.C.A. § 7105(b)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The criteria for withdrawal of a Substantive Appeal by the appellant concerning entitlement to an increased rating for hemorrhoids have been met. 38 U.S.C.A. § 7105(b)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. See also 38 C.F.R. § 20.204. In June 2007, the appellant informed VA of his desire to withdraw his appeal to the issues of entitlement to increased ratings for a left ear hearing loss and hemorrhoids. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appealed matters and they are dismissed. ORDER The appeal as to the issues of entitlement to increased ratings for a left ear hearing loss and hemorrhoids is dismissed. REMAND The veteran contends that he is entitled to a higher rating for his coronary artery disease with hypertension, status post coronary artery bypass graft because it is more severe than contemplated by the current 10 percent rating. Specifically, at a February 2008 Travel Board hearing, the veteran stated that his disorder had worsened since his October 2006 VA fee-basis examination. See page 17 of hearing transcript (transcript). The veteran specifically indicated that he experienced increased symptoms with exercise and stress which were causing him to miss time from work. See page 13 of transcript. In light of this testimony and the appellant's January 2008 emergency room visit for chest pain, further development is in order. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the veteran for a VA cardiovascular examination by a physician with appropriate expertise to determine the nature and severity of the appellant's coronary artery disease with hypertension, status post coronary artery bypass graft. The claim folders are to be made available for the examiner to review. All indicated studies, including exercise stress testing, must be performed unless medically contraindicated. All findings should be reported in detail. If any test is medically contraindicated that fact and the reasons why it is contraindicated must be explained in writing. In accordance with the latest AMIE work sheets for heart disorders, the examiner is to provide a detailed review of the veteran's pertinent medical history, current complaints, and the nature and extent of any heart disorder. The examiner must provide specific findings as to any left ventricular dysfunction and the appellant's current ejection fraction. The examiner must provide specific findings as to the workload expressed in METs at which time the appellant develops dyspnea, fatigue, angina, dizziness, or syncope. If the appellant presents no objective evidence of an organic cardiovascular disability that fact must be noted and an explanation provided to support such a finding. A complete rationale for any and all opinions expressed must be provided. 2. The RO should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action need be taken. 3. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Then, the RO should review any additional evidence and readjudicate the veteran's claim under all appropriate statutory and regulatory provisions and legal theories. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case that includes all evidence added to the file since the November 2007 supplemental statement of the case. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs