Citation Nr: 1144167 Decision Date: 12/02/11 Archive Date: 12/14/11 DOCKET NO. 07-31 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation for chronic active cervical strain myositis, currently rated as 20 percent disabling. 2. Entitlement to service connection for a bilateral upper extremity disorder, to include radiculopathy or carpal tunnel syndrome, to include as due to service-connected chronic active cervical strain myositis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1974 to March 1975, and in the Army National Guard from September 24, 1994 to September 25, 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran's claim for service connection for an upper extremity disorder has been recharacterized as listed on the title page of this decision. This characterization is broader that the original claim, and thus more favorable to the Veteran. Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The issue of service connection for the upper extremity disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT In January 2008, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and her representative in writing that she intended to withdraw her appeal for an increased evaluation for chronic active cervical strain myositis; there is no question of fact or law remaining before the Board. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the Veteran have been met as to the claim seeking service connection for an increased evaluation for chronic active cervical strain myositis; the Board has no further jurisdiction in the matter. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 7104, 7105 (West 2002 and Supp 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326, 20.101, 20.202, 20.204 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, given the Veteran's expression of intent to withdraw his appeal in the matter of s an increased evaluation for chronic active cervical strain myositis, further discussion of the impact of the VCAA on this matter is not necessary. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. 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. An 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 Veteran or by her authorized representative. 38 C.F.R. § 20.204. In a statement dated in October 2007, and forwarded to the Board by the Veteran's representative in January 2008, the Veteran withdrew her appeal for an increased evaluation for chronic active cervical strain myositis. Hence, there is no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed. ORDER The appeal seeking an increased evaluation for chronic active cervical strain myositis is dismissed. REMAND The Veteran's claim for service connection for an upper extremity disorder was previously denied because there was no current diagnosis of radiculopathy. See, e.g., VA Examination (July 2006); however, a June 2005 VA examination showed a positive Phalen maneuver and a positive Tinel sign. The Veteran has also been diagnosed with carpal tunnel syndrome. See, e.g., VA Treatment Records (August 2006). The Veteran should be afforded a new VA examination which considers whether the Veteran's carpal tunnel syndrome, or another upper extremity disorder, is secondary to service-connected chronic active cervical strain myositis. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). In August 2007, the Veteran stated that he received treatment the San Juan VA Medical Center (VAMC), Ponce VA Outpatient Clinic, and Guayama Community-Based Outpatient Clinic. The most recent VA treatment records associated with the claims file are dated in June 2007. Current and complete records should be obtained. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's current and complete VA treatment records, including records from the San Juan VAMC, Ponce VA Outpatient Clinic, and Guayama Community-Based Outpatient Clinic. Evidence of attempts to obtain these records should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of an upper extremity disorder, to include carpal tunnel syndrome. The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed. All relevant diagnoses should be assigned. The examiner should conduct a complete history and physical and offer an opinion as to whether at least as likely as not (50/50 probability), carpal tunnel syndrome or any other upper extremity disorder, is related to the service-connected chronic active cervical strain myositis or is otherwise related to service. Discuss the significance of the positive Phalen maneuver and a positive Tinel sign shown in an earlier examination. All necessary diagnostic testing should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 3. After completing the above action, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs