Citation Nr: 0814534 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-04 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent, currently evaluated at 40 percent, for degenerative joint disease of the lumbar spine with osteophyte formation at several levels; herniated disc at L3- L4; bulging discs at L4-L5 and L5-S1 with narrowing of neural foramina more severe on the left and lumbar myositis. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for a an acquired psychiatric disorder. 4. Entitlement to service connection for an eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from February 2003 to December 2003, including service in support of Operation Noble Eagle in February 2003, and service in Kuwait from April to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2004 and October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The September 2004 rating decision granted service connection for a lumbar spine disorder with a 20 percent evaluation effective December 31, 2003, and denied service connection for a nervous/psychiatric condition and a skin disorder. The October 2005 decision denied service connection for an eye disorder. In a rating decision dated in August 2006 the RO increased the rating for the veteran's service-connected back disability from 20 percent to 40 percent effective February 7, 2006. The Board notes the veteran's mention in his January 2006 substantive appeal (Form 9) of recurrent headaches; however, this issue is not on appeal. This issue is accordingly referred back to the RO for clarification as to whether the veteran is stating a claim for headaches. FINDING OF FACT In correspondence dated in September 2006, prior to the promulgation of a decision in the appeal, the veteran stated that he was satisfied with the disability rating for his service-connected back disability. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal for an initial disability rating in excess of 20 percent 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 at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). Withdrawal may be made by the veteran or his authorized representative. 38 C.F.R. § 20.204. In a rating decision dated in September 2004 the veteran was granted service connection for a low back disability with an evaluation of 20 percent effective December 31, 2003. The veteran appealed this initial rating. In a rating decision dated August 31, 2006, the RO increased the rating for the veteran's service-connected back disability from 20 percent to 40 percent effective February 7, 2006. The veteran was notified of this action in a letter dated September 6, 2006. In correspondence dated in September 2006 the veteran wrote as follows: This is in reply to your letter dated 9/6/06 with the disability rating decision dated 8/31/06. I am satisfied with the disability rating on my back condition. In view of the veteran's written agreement with the August 2006 increase in rating for his service-connected back disability there remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 38 U.S.C.A. § 7105. ORDER The appeal concerning entitlement to an initial disability rating in excess of 20 percent, currently evaluated at 40 percent, for degenerative joint disease of the lumbar spine with osteophyte formation at several levels; herniated disc at L3-L4; bulging discs at L4-L5 and L5-S1 with narrowing of neural foramina more severe on the left and lumbar myositis is dismissed. REMAND Review of the record reveals that the veteran was accorded compensation and pension (C&P) examinations in May 2004 with regard to his claims for service connection for a nervous/psychiatric condition and a skin disorder. He was also accorded a C&P examination with regard to his claim for an eye disorder in September 2005. Unfortunately, the claims file was not reviewed pursuant to any of these examinations (see Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). Moreover, an opinion as to etiology was not proffered regarding the issue of service connection for a skin disorder. In addition, the May 2004 C&P psychiatric examiner did not render a diagnosis; however, VA medical records dating from at least January 3, 2005, show ongoing treatment for a psychiatric disorder diagnosed in May 2006 as "major depression with psychotic features." The existing C&P examination evidence is thus inadequate for adjudication of the veteran's claims for service connection. Remand in accordance with 38 C.F.R. § 3.326 is therefore warranted. In addition to the foregoing the Board notes that during his May 2004 C&P examinations, and in correspondence from the veteran that was received by the RO in September 2005, the veteran mentioned that he had served in Kuwait in support of Operation Iraqi Freedom and Operation Enduring Freedom. DD- 214, which shows that the veteran had 11 months of foreign service, confirms service in support of Operation Noble Eagle in February 2003 and service in Kuwait from April to May 2003. Pursuant to 38 C.F.R. § 3.317(d), the Southwest Asia theater of operations includes service in Kuwait. Request should also be made for a copy of treatment records from the San Juan Veterans' Affairs Medical Center (VAMC) dating from August 23, 2006. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Request treatment records from the San Juan VAMC dating from August 23, 2006. Also attempt to obtain any other pertinent treatment records identified by the veteran during the course of the remand, provided that any necessary authorization forms are completed. If no further treatment records exist, the claims file should be documented accordingly. 2. Schedule the veteran for a Gulf War examination. The claims folder must be made available to, and reviewed by, the examiner. All indicated tests should be performed, and all findings reported in detail. The examiner is specifically requested to state whether the veteran has a current eye, skin, or acquired psychiatric disorder; and, if so, whether said disorders are attributable to some medically explained (known) illness or injury. If a current skin, eye, or psychiatric disorder is attributable to a medically explained (known) illness or injury, the examiner must opine as to whether said disorder was incurred during active military service. See Compensation and Pension Examination Gulf War Guidelines. The examiner should specifically provide an opinion as to whether any eye disability found is at least as likely as not (a probability of 50 percent or greater) related to a head injury that the veteran reports occurred in service. If the examiner feels that other specialized examinations are necessary, those examinations should be conducted. A complete rationale for all opinions must be included in the report provided. 3. After any further development deemed necessary, readjudicate the issues on appeal, including, if appropriate, under the provisions of 38 C.F.R. § 3.317. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1) and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs