Citation Nr: 1124092 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-22 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for migraine headaches, currently rated as 30 percent disabling. 2. Entitlement to an increased rating for residuals of psychogenic pain disorder, currently rated as 50 percent disabling. 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person (A&A) or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to November 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran requested to testify before a member of the Board at the RO, and a travel Board hearing was duly scheduled in November 2010. Thereafter, however, the Veteran withdrew her hearing request. The issue of entitlement to SMC is addressed in the Remand that follows the Order section of this decision. FINDING OF FACT In November 2010, prior to the promulgation of the Board's decision in the appeal, the appellant (through her authorized representative) withdrew her appeal with respect to the issues of entitlement increased ratings for migraine headaches and residuals of psychogenic pain disorder. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal for the issues of entitlement to increased ratings for migraine headaches and residuals of psychogenic pain disorder by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION An appellant may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal. 38 U.S.C.A. §§ 7104, 7105(d). In a statement received by the Board in November 2010, the appellant (through her authorized representative) indicated that she wished to withdraw her appeal with respect to the issues of entitlement to increased ratings for increased ratings for migraine headaches and residuals of psychogenic pain disorder. This is certainly permissible under the Board's rules of practice. See 38 C.F.R. § 20.204. Given the appellant's clear intent to withdraw her appeal in these matters, further action by the Board on these issues would not be appropriate. 38 U.S.C.A. § 7105. ORDER The appeal for entitlement to an increased rating for migraine headaches is dismissed. The appeal for an increased rating for residuals of psychogenic pain disorder is dismissed. REMAND Based on a review of the record, the Board finds that additional development is necessary prior to adjudication of the Veteran's claim for SMC. Historically, service treatment records note that the Veteran complained of pain and numbness in her right upper extremity after falling in 1984. No organic basis for her complaints was found. The Veteran received a medical discharge due to psychogenic pain disorder. By rating decision dated in March 1986, the RO granted service connection for psychogenic pain disorder. Subsequent VA and private treatment records show that the Veteran continued to be seen with increasing complaints of pain, including in the arms, legs, neck and back. A June 1990 VA examination report notes a diagnosis of myofacial pain syndrome. An April 2000 VA examination report notes that the Veteran's previous diagnosis of psychogenic pain disorder was no longer a diagnosis under DSM-IV. The examiner stated that the Veteran's diagnosis would best be described as undifferentiated somatoform disorder. Subsequent treatment records note that the Veteran was recently diagnosed with fibromyalgia and is now confined to a wheelchair. In a November 2008 VA Form 21-2680, examination form for housebound or aid and attendance, the VA physician opined that the Veteran was unable to perform activities of daily living and was in need of assistance due to her fibromyalgia. He opined that the Veteran required daily skilled personal health care without which she would require hospital, nursing home or institutional care. The Board cannot consider the question of whether SMC is or is not warranted until the RO or the AMC has adjudicated the question of entitlement to service connection for fibromyalgia which has been raised by the medical evidence of record. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). See also Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). The Board therefore refers for RO or AMC initial adjudication the claim for service connection for fibromyalgia. In this regard, VA regulations provide that a change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. See 38 C.F.R. §§ 4.13, 4.125. Upon remand, the Veteran should be scheduled for a VA examination to address the etiology of the Veteran's fibromyalgia. The examiner should specifically address the degree, if any, to which the separate diagnoses of fibromyalgia and psychogenic pain disorder are related, to include whether one diagnosis is a progression of the other diagnosis, a correction of an error in diagnosis, or development of a new and separate condition. Finally, additional evidence (an undated VA examination report) was received in June 2010, subsequent to the issuance of the May 2009 Statement of the Case (SOC). This new evidence has not been reviewed by the RO in conjunction with the issue on appeal. The Veteran has not waived RO consideration of the additional evidence. Accordingly, the RO must be given the opportunity to review this evidence before the Board can enter a decision. See 38 C.F.R. § 20.1304(c) (2010). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should issue to the Veteran and her representative a letter providing all notice required in response to the claim of entitlement to service connection for fibromyalgia. . 2. The RO of the AMC should secure for the record copies of all pertinent medical records that have not yet been associated with the Veteran's claims files. 3. Thereafter, he RO or the AMC should arrange for the Veteran to be examined by a physician with sufficient expertise to determine the etiology of any current fibromyalgia. The Veteran should be properly notified of the examination and of the consequences of her failure to appear. Her claims files must be reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner should specifically note whether the Veteran indeed has fibromyalgia, and based on examination of the Veteran and review of the record, should provide an opinion indicating whether any such fibromyalgia is, at least as likely as not (a 50 percent or better probability), related to her service. The examiner should also specifically address the degree, if any, to which the separate diagnoses of fibromyalgia and psychogenic pain disorder are related, to include whether or not one diagnosis is a progression of the other diagnosis, a correction of an error in diagnosis, or development of a new and separate condition. The examiner must explain the rationale for all opinions expressed. All findings and conclusions should be set forth in a legible report. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should adjudicate the issue of entitlement to service connection for fibromyalgia and inform the Veteran and her accredited representative of her appellate rights with respect to the determination. 6. The RO or the AMC should then readjudicate the Veteran's claim for SMC in light of the development ordered above. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and her representative the requisite opportunity to respond. Then, the case should be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is otherwise notified but she has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2010). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs