Citation Nr: 1000016 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 06-17 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Evaluation of chondromalacia of the right knee currently evaluated as 10 percent disabling. 2. Evaluation of post traumatic degenerative joint disease of he left knee currently rated as 20 percent disabling. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from September 1976 to September 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from November 2003 and February 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in October 2009. A transcript of this proceeding has been associated with the claims file. The issue of entitlement to service connection for degenerative disc disease of the cervical 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 October 2009 correspondence and during the October 2009 Board hearing the Veteran indicated that she wished to withdraw her appeal concerning the issues of entitlement to service connection for chronic obstructive pulmonary disease, entitlement to an initial disability rating greater than 10 percent for chondromalacia of the right knee, and entitlement to a disability rating greater than 20 percent for post traumatic degenerative joint disease of the left knee. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal have been met with respect to the issues of entitlement to service connection for chronic obstructive pulmonary disease, entitlement to an initial disability rating greater than 10 percent for chondromalacia of the right knee, and entitlement to a disability rating greater than 20 percent for post traumatic degenerative joint disease of the left knee. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In a November 2003 rating decision the RO granted service connection for chondromalacia of the right knee and assigned a 10 percent disability rating. In a February 2004 rating decision, the RO denied the Veteran's claim of service connection for COPD and continued a 20 percent evaluation for post traumatic degenerative joint disease of the left knee. The Veteran disagreed with these determinations in October 2004 perfected an appeal to the Board in April 2006. In October 2009 correspondence the Veteran indicated that she wished to withdraw her appeal concerning the issues of issues regarding COPD and bilateral knee disorders. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has properly withdrawn her appeal concerning the issues of entitlement to service connection for chronic obstructive pulmonary disease, entitlement to an initial disability rating greater than 10 percent for chondromalacia of the right knee, and entitlement to a disability rating greater than 20 percent for post traumatic degenerative joint disease of the left knee, and, 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 they are dismissed. ORDER The appeal concerning the issues of entitlement to service connection for chronic obstructive pulmonary disease, entitlement to an initial disability rating greater than 10 percent for chondromalacia of the right knee, and entitlement to a disability rating greater than 20 percent for post traumatic degenerative joint disease of the left knee is dismissed. REMAND The Veteran contends that she injured her neck during military service in approximately December 1979, when a fellow postal clerk threw a bag of mail directly at her head and neck. The Veteran was afforded a VA examination regarding the cervical spine in August 2008. Initially, the August 2008 examiner noted that service treatment records did not document an injury to the neck. Upon physical examination of the Veteran, the examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. The examiner also opined that he could not resolve the issue of cervical spine service connection without resorting to mere speculation. He noted that there was no documentation whatsoever concerning a cervical spine injury while in service. A review of the treatment records shows that in January 1980, the Veteran was seen for upper thoracic pain, "likely related to bed" and it appears that cervical spine X-rays were ordered. Moreover, a report of a VA examination of February 2006 conducted for other disabilities, notes that service treatment records showed complaints of neck and upper back pain. During the hearing of October 2009 the Veteran at one point stated that she oftentimes refers to her "neck" as her "back." The Veteran has argued that she has experienced neck/back pain since service. Considering the evidence as a whole, the Board finds that the January 1980 reports of upper thoracic pain, included the neck area. The August 2008 examiner was not able to render an opinion regarding the etiology of the Veteran's cervical spine disability because he could find no noted complaints in service. However, having determined that the records do show complaints in service, the Board finds that a new opinion which specifically considers the reports of thoracic spine pain in service is necessary. The Board further notes that VA outpatient treatment records of August 2007 notes that brain and cervical spine magnetic resonance imaging scans (MRIs) were to be scheduled. Additional records show results of a brain MRI. However, while there are cervical spine MRI findings which predate the entry of August 2007, there are no cervical spine MRI findings after August 2007. Therefore, the Board cannot be certain that all outpatient treatment records have been associated with the claims file. The RO should determine if a cervical spine MRI was conducted pursuant to the August 2007 order, and if so, the findings of the MRI should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should determine whether the Veteran underwent a cervical spine MRI pursuant to the August 2007 VA outpatient treatment note and associate any recent and missing VA treatment records, including a recent cervical spine MRI, with the claims file. 2. The RO should return the file to the August 2008 examiner and ask that he provide a new opinion regarding the etiology of the Veteran's cervical spine disability. The examiner is to specifically consider the Veteran's reports of upper thoracic pain in January 1980. The examiner should be advised that the Veteran's reports of upper back pain have been considered by the Board to include reports of neck pain. If the August 2008 examiner is not available, the RO should forward the file to another examiner who can provide the requested opinion. The claims file must be made available to the examiner for review in connection with the examination. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current cervical spine disability first manifested in service or is otherwise related to military service to include the complaints of upper thoracic pain in January 1980. The examiner should provide a complete rationale for the requested opinion. 3. After the above development has been completed, readjudicate the issue on appeal. If all the desired benefits are not granted, a supplemental statement of the case should be furnished to the Veteran and her representative. The case should then be returned to the Board, if otherwise in order. 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. 2009). ______________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs