Citation Nr: 0813899	
Decision Date: 04/28/08    Archive Date: 05/08/08

DOCKET NO.  05-15 039	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to a total disability rating based on 
individual unemployability due to service connected 
disabilities (TDIU).

2.  Entitlement to an evaluation in excess of 20 percent for 
post operative residuals of a fractured right ankle with 
traumatic arthritis.

3.  Entitlement to an evaluation in excess of 20 percent for 
residuals of a low back injury with degenerative disk disease 
(DDD).

4.  Entitlement to service connection for a chronic right 
elbow disability.

5.  Entitlement to service connection for a chronic left 
elbow disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel


INTRODUCTION

The veteran served on active duty from September 1964 to June 
1981.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a February 2004 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Phoenix, Arizona.  The RO, in pertinent part, denied 
entitlement to service connection for chronic right and left 
knee disabilities, chronic right and left elbow disabilities, 
and TDIU.  The RO also continued 20 percent disabling ratings 
for both the service-connected post operative residuals of a 
fractures right ankle with traumatic arthritis and the 
service-connected residuals of a low back injury with DDD.

The RO awarded service connection for chondrocalcinosis of 
the bilateral knees in May 2007.  As such, the claims for 
service connection for right and left knee disorders are no 
longer in appellate status.

The claims of entitlement to service connection for chronic 
right and left elbow disabilities and evaluations in excess 
of 20 percent for service-connected post operative residuals 
of a fractured right ankle with traumatic arthritis and 
residuals of a low back injury with DDD 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

During the January 2008 Board hearing and in writing on 
December 28, 2007, and January 9, 2008, prior to the 
promulgation of a decision in the appeal, the veteran 
withdrew his claim of entitlement to TDIU.  


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the 
veteran with respect to his claim of entitlement to TDIU have 
been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 
38 C.F.R. §§ 20.202, 20.204 (2007).


REASONS AND BASES FOR FINDING 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 (2007).  Withdrawal may be 
made by the appellant or by his or her authorized 
representative.  38 C.F.R. § 20.204 (2007).  During the 
January 2008 Board hearing, the veteran withdrew his claim of 
entitlement to TDIU.  The veteran also submitted written 
statements on December 28, 2007, and January 9, 2008, 
requesting that his claim be withdrawn.  

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 and it is dismissed.

ORDER

Entitlement to TDIU is dismissed.


REMAND

The veteran has also filed claims for entitlement to service 
connection for chronic right and left elbow disabilities and 
for evaluations in excess of 20 percent for service-connected 
post operative residuals of a fractured right ankle with 
traumatic arthritis and residuals of a low back injury with 
DDD.  A determination has been made that additional 
evidentiary development is necessary.  Accordingly, further 
appellate consideration will be deferred and this case 
remanded for action as described below.

Review of the claims file reveals the veteran's service 
medical records are incomplete.  The veteran served on active 
duty from September 1964 to June 1981.  Records from the 
first period of enlistment, September 1964 to July 1968, have 
not been associated with the claims folder.  An attempt 
should be made to obtain these records on Remand.  

Under 38 C.F.R. § 3.159(c)(2), VA will make as many requests 
as are necessary to obtain relevant records from a Federal 
Department or agency.  These records include military 
records.  VA will end its efforts to obtain records from a 
Federal department or agency only if VA concludes that the 
records sought do not exist or that further efforts to obtain 
those records would be futile.  Id.  

Review of the claims file also reveals that there very well 
may exist records of private medical treatment pertinent to 
these claims that have not been associated with the veteran's 
claims file.  In various statements, the veteran has 
indicated that he sought treatment from Dr. AJR for his right 
ankle and bilateral elbows.  A May 2004 statement from Dr. 
AJR revealed the veteran was a long standing patient.  Dr. 
AJR further indicated that he performed surgery on the 
veteran's elbow approximately 12 years prior.  The veteran 
clarified that the elbow surgery was performed in 1987.  See 
claim received in June 2003.  The complete treatment records 
of the veteran from Dr. AJR have not been associated with the 
claims folder.  An attempt should be made to obtain any 
outstanding records of pertinent treatment.  

Under 38 C.F.R. § 3.159(c)(1), VA will make reasonable 
efforts to obtain relevant records not in the custody of a 
Federal department or agency, to include records from private 
medical care providers.  Such reasonable efforts will 
generally consist of an initial request for the records and, 
if the records are not received, at least one follow-up 
request.  Id.  A follow-up request is not required if a 
response to the initial request indicates that the records 
sought do not exist or that a follow-up request for the 
records would be futile.  Id.

A VA examination is necessary in connection with the claims 
of entitlement to service connection for right and left elbow 
disabilities.  Under the VCAA, an examination is necessary to 
make a decision on a claim, if the evidence of record 
contains the following: (1) competent evidence that the 
claimant has a current disability, or persistent or recurrent 
symptoms of disability and (2) the evidence indicates the 
disability or symptoms may be associated with the claimant's 
active military, naval, or air service, but (3) does not 
contain sufficient medical evidence for the Secretary to make 
a decision on the claim.  See 38 U.S.C.A. § 5103A(d).  

The available service medical records show the veteran sought 
treatment for a right elbow injury.  He was variously 
diagnosed with a resolving soft tissue injury and probable 
olecranon bursitis or tendon strain.  Post-service, it 
appears the veteran underwent arthroscopic surgery on his 
right elbow to remove bone fragments.  After receipt of any 
additional service and private medical records obtained in 
accordance with this remand, the veteran must be scheduled 
for a VA examination for the express of determining the 
etiology of any currently diagnosed right or left elbow 
disability.  Id.

The veteran must also be afforded a VA examination in 
connection with the claims of entitlement to evaluations in 
excess of 20 percent for service-connected post operative 
residuals of a fractured right ankle with traumatic arthritis 
and residuals of a low back injury with DDD.  The veteran was 
afforded a VA joints examination in June 2005.  The veteran 
testified in January 2008 that his right ankle and low back 
disabilities have worsened in severity.

Where there is evidence of a material change in the veteran's 
condition or as in the instant case, when the veteran asserts 
that the service-connected disabilities in question have 
undergone an increase in severity since the time of his last 
VA examination (June 2005), the prior VA examination report 
is considered inadequate for rating purposes and a new VA 
examination is required.  See Snuffer v. Gober, 10 Vet. App. 
400, 402-03 (1997).   After receipt of any additional records 
obtained in accordance with this remand, the veteran must be 
afforded a VA examination in connection with the increased 
rating claims on appeal.  The examiner is asked to address 
the specific questions set forth in the numbered paragraphs 
below.  

As these matters are being remanded, the agency of original 
jurisdiction should take efforts to ensure that it provides 
the veteran with notice that meets all due process 
requirements, including those addressed by recent cases from 
the United States Court of Appeals for Veterans Claims' 
(Court).  

Accordingly, the case is REMANDED for the following action:

1.  The RO should send the veteran notice 
that meets all due process requirements, 
including those addressed by Court 
decisions.  In the letter, the RO should 
notify the veteran that, to substantiate 
such claims for higher evaluations for 
post operative residuals of a fractured 
right ankle with traumatic arthritis and 
residuals of a low back injury with DDD: 

(a) the veteran must provide, or ask VA 
to obtain, medical or lay evidence 
demonstrating a worsening or increase in 
severity of the disabilities and the 
effect that worsening has on the his 
employment and daily life; 

(b) if the diagnostic code under which 
the veteran is rated contains criteria 
necessary for entitlement to a higher 
disability rating that would not be 
satisfied by the veteran demonstrating a 
noticeable worsening or increase in 
severity of the disabilities and the 
effect of that worsening has on the 
veteran'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; 

(c) the veteran must be notified that, 
should an increase in disability be 
found, a disability rating will be 
determined by applying relevant 
diagnostic codes; and 

(d) the notice must also provide examples 
of the types of medical and lay evidence 
that the veteran may submit (or ask VA to 
obtain) that are relevant to establishing 
entitlement to increased compensation.  

2.  The RO /AMC must contact the National 
Personnel Records Center and request the 
veteran's service medical records for the 
period of enlistment from September 1964 
to July 1968.  All requests for records 
and their responses must be clearly 
documented in the claims folder.

3.  After obtaining the necessary 
releases, the RO /AMC should obtain all 
outstanding private medical records of 
the veteran from Dr. ALJ, 2525 South 
Rural Road, Suite 10 N, Tempe, Arizona, 
85282, to include the 1987 surgical 
report involving the veteran's right 
elbow.  All information, which is not 
duplicative of evidence already received, 
should be associated with the claims 
file.

4.  After the receipt of any additional 
medical records obtained in accordance 
with this remand, the RO /AMC should 
schedule an orthopedic examination to 
ascertain the nature and etiology of any 
chronic right or left elbow disability.  
The veteran's claims folder must be 
available to, and reviewed by, the 
examiner in conjunction with the 
examination.  The examiner should 
indicate that the claims folder was 
reviewed and should comment on the 
medical opinions already of record, 
specifically the May 2004 letter from Dr. 
AJR.  The examiner should be asked to 
opine whether it is at least as likely as 
not that any currently diagnosed chronic 
elbow disability is due to or aggravated 
by any aspect of the veteran's period of 
service.  The examiner should explain in 
detail the rationale for any opinion(s) 
given.  

5.  After the receipt of any additional 
medical records obtained in accordance 
with this remand, the AOJ/AMC should 
schedule the veteran for an orthopedic 
examination to ascertain the nature and 
severity of his service-connected post 
operative residuals of a fractured right 
ankle with traumatic arthritis and his 
service-connected residuals of a low back 
injury with DDD.  The entire claims file 
must be made available to the examiner 
designated to examine the veteran, and 
the examination report should include 
discussion of the veteran's documented 
medical history and assertions.  The 
clinical findings must be reported in 
detail.  Additional appropriate 
diagnostic tests (to include X-rays) 
should also be accomplished with clinical 
findings reported in detail.

(a)  With respect to the post operative 
residuals of a fractured right ankle with 
traumatic arthritis, the examiner is 
specifically requested to comment on the 
range of motion for the right ankle, 
including the degree of motion that is 
limited by pain, if any.  The examiner 
should also express an opinion concerning 
whether there would be additional limits 
of functional ability on repeated use or 
flare-ups (if the veteran describes 
flare-ups).  

(b)  With regard to the veteran's 
residuals of a low back injury with DDD, 
the examiner should provide data as to 
the range of motion for the lumbosacral 
spine, specifically identifying any 
excursion of motion accompanied by pain.  
The examiner should also identify any 
objective evidence of pain and assess the 
extent of any pain, and comment on the 
extent of any incoordination, weakened 
movement and excess fatigability on use.  
The examiner should also express an 
opinion concerning whether there would be 
additional limits of functional ability 
on repeated use or flare-ups (if the 
veteran describes flare-ups).  The 
examiner should also specifically 
identify any evidence of neuropathy due 
to the service-connected disability, to 
include characteristic pain, demonstrable 
muscle spasm, and absent ankle jerk.  In 
addition, the examiner should quantify 
the number of weeks of incapacitating 
episodes (a period of acute signs and 
symptoms due to intervertebral disc 
syndrome that requires bed rest 
prescribed by a physician and treatment 
by a physician) over the past 12 months.

6.  After completing the requested 
actions, and any additional notification 
and/or development deemed warranted, the 
RO /AMC should readjudicate the claims on 
appeal in light of all pertinent evidence 
and legal authority.  Adjudication of the 
claims for higher evaluations should 
include specific consideration of whether 
"staged rating" (assignment of different 
ratings for distinct periods of time, 
based on the facts found), is 
appropriate.  Hart v. Mansfield, 483 F.3d 
1311 (Fed. Cir. 2007 (a claimant may 
experience multiple distinct degrees of 
disability that might result in different 
levels of compensation from the time the 
increased rating claim was filed until a 
final decision is made.)  

7.  If any benefit sought on appeal 
remains denied, the RO /AMC must furnish 
to the veteran and his representative an 
appropriate SSOC that includes clear 
reasons and bases for all determinations 
and affords them an appropriate time 
period for response before the claims 
file is returned to the Board for further 
appellate consideration.

The purpose of this remand is to assist the veteran with the 
development of his claims.  The veteran has the right to 
submit additional evidence and argument on the matter the 
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

No action is required of the veteran until further notice.  
However, the Board takes this opportunity to advise the 
veteran that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of his 
claims.  His cooperation in VA's efforts to develop his 
claims, including reporting for any scheduled VA 
examinations, is both critical and appreciated.  The veteran 
is also advised that failure to report for any scheduled 
examination may result in the denial of a claim.  38 C.F.R. 
§ 3.655.  



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).




_________________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  
38 C.F.R. § 20.1100(b) (2007).




 Department of Veterans Affairs