Citation Nr: 1131817 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 08-12 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable evaluation for urticaria. 2. Entitlement to service connection for mottled hypopigmentation, to include as due to herbicide exposure. 3. Entitlement to service connection for a perforation of the esophagus. 4. Entitlement to service connection for Barrett's esophagus, to include as secondary to perforation of the esophagus. 5. Entitlement to service connection for a respiratory disorder, to include emphysema, shortness of breath and asthma. 6. Entitlement to payment of additional compensation based on the permanent incapacity for self-support of A.J.H. (compensation for a helpless child). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran attended a hearing before the undersigned in April 2011. At the hearing before the undersigned in April 2011, the Veteran's representative stated that they were developing claims for service connection for congestive heart failure and service connection for ischemic heart disease. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the RO for appropriate action. During the Board hearing, the Veteran and his representative initially indicated that they wished to withdraw his claims for service connection for asthma and for shortness of breath. However, during the course of the hearing, it became clear that these claimed conditions appeared to be symptoms of the Veteran's larger disability claim for service connection for a respiratory condition, however diagnosed. As such, the issue has been recaptioned on the first page to accurately reflect the Veteran's intent. The issues of service connection for perforation of the esophagus, service connection for Barrett's esophagus, service connection for a respiratory condition, and compensation for a helpless child are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. At the April 2011 Board hearing, prior to the promulgation of a decision, the Veteran submitted testimony withdrawing his claim of entitlement to a compensable rating for urticaria. 2. At the April 2011 Board hearing, prior to the promulgation of a decision, the Veteran submitted testimony withdrawing his claim of entitlement to service connection for mottled hypopigmentation. CONCLUSIONS OF LAW 1. As the Veteran has withdrawn his appeal with respect to the claim of entitlement to a compensable rating for urticaria, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. As the Veteran has withdrawn his appeal with respect to the claim of entitlement to service connection for mottled hypopigmentation, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the April 2011 hearing, the Veteran withdrew his appeal with respect to the claims of entitlement to a compensable rating for urticaria and for service connection for mottled hypopigmentation. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 U.S.C.A. § 7105, 38 C.F.R. § 20.202. Appeals withdrawn on the record at a hearing are an exception to the requirement for a written withdrawal. 38 C.F.R. § 20.204(b). As the Veteran has withdrawn his appeal with respect to the claims of entitlement to an increased rating for urticaria, and for service connection for mottled hypopigmentation, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction and the issue is dismissed. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. ORDER The appeal for a compensable rating for urticaria is dismissed. The appeal for service connection for mottled hypopigmentation is dismissed. REMAND The Board finds that additional evidentiary development is needed before it can adjudicate the Veteran's claims for service connection for perforation of the esophagus, service connection for Barrett's esophagus, service connection for a respiratory condition, and compensation for a helpless child. At his April 2011 hearing, the Veteran described having received medical treatment on several occasions, but the respective records from the treatment do not appear to have been obtained. These include treatment records from the Denver, Colorado, VA medical center (VAMC), dated approximately 1987 to 1990; current records from the Cheyenne, Wyoming, VAMC; records from North Suburban Medical Center in Thornton, Colorado, dated in approximately January 1990; and records from a private clinic in Brighton, Colorado, dated approximately 1999 to 2000. These records must be obtained before the Board can make a decision on the claims on appeal. The Veteran reports that he began having breathing problems in service and that they have been continuous since that time. There is also some suggestion in the Veteran's service treatment records that angioedema may cause respiratory obstruction in some cases. Additionally, the Veteran contends that his current breathing problems may be due to herbicide exposure in service. As such, the Veteran should be given a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). The Veteran also contends that his esophagus was perforated in service when a medical provider put a scope down his throat to check for bleeding ulcers. He asserted that nobody realized that a serious perforation had occurred until after his discharge; but he believes that his Barrett's esophagus is due to this perforation. The Veteran should be given a VA examination. See McLendon, supra. Because the Veteran has raised the possibility that Barrett's esophagus may be secondary to a perforation of the esophagus that he believes occurred during service, he should be sent additional notice which explains the requirements for secondary service connection. The claim for compensation for a helpless child is inextricably intertwined with the claims for service connection. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue and it is deferred. See Henderson v. West, 12 Vet. App. 11 (1998), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice of what evidence is necessary to support a claim for secondary service connection. 2. Ask the Veteran to identify the private clinic in Brighton, Colorado, where he was treated. If the Veteran provides sufficient details, obtain the complete records, including records dated in approximately 1999 to 2000. Evidence of attempts to obtain these records should be associated with the claims file. 3. Obtain the Veteran's complete records from North Suburban Medical Center in Thornton, Colorado, including records dated in approximately January 1990. Evidence of attempts to obtain these records should be associated with the claims file. 4. Obtain the Veteran's complete Denver, Colorado, VAMC records, including records dated in approximately 1987 to 1990. Evidence of attempts to obtain these records should be associated with the claims file. 5. Obtain the Veteran's complete Cheyenne, Wyoming, VAMC records, including records dated September 2009 to the present. Evidence of attempts to obtain these records should be associated with the claims file. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his esophageal disorder(s). The Veteran's claims file should be made available to the VA examiner. The examiner should conduct a complete history and physical, assign all relevant diagnoses, and answer the following: (a) Is it at least as likely as not (50/50 probability) that the Veteran's esophagus was perforated during his time in military service (in approximately November 1970) during a routine scope? If so, please answer the following questions: (b) Does the Veteran have a current diagnosis which can at least as likely as not (50/50 probability) be attributed to the perforation in service? (c) Is it at least as likely as not (50/50 probability) that the Veteran's current Barrett's esophagus is due to the perforation in service? 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. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory disorder(s). The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed. The examiner should conduct a complete history and physical, assign all relevant diagnoses, and answer the following: Is it at least as likely as not (50/50 probability) that any current respiratory disorder began in service, has been continuous since service, is due to herbicide exposure in service, or is otherwise related to service to include as secondary to the Veteran's service connected urticaria? The examiner should address the service treatment records which indicate that hereditary angioedema can cause respiratory obstruction. 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. 8. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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. 2010). ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs