Citation Nr: 1109248 Decision Date: 03/09/11 Archive Date: 03/17/11 DOCKET NO. 08-31 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for rheumatoid arthritis. 4. Entitlement to a compensable evaluation for bilateral hearing loss. 5. Entitlement to a compensable evaluation for residuals of fractures of the right first, second and third toes. 6. Entitlement to a compensable evaluation for residuals of fracture of the right ninth rib. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1979 and August 1979 to October 1993. This matter comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A Notice of Disagreement was filed in November 2007, a Statement of the Case was issued in September 2008, and a Substantive Appeal was received in September 2008. The Veteran testified at a hearing before the Board in July 2010. Additional evidence was submitted in August 2010, along with a waiver of any right to initial RO consideration of that evidence. The September 2007 rating decision also denied entitlement to individual unemployability (TDIU), and the Veteran filed a Notice of Disagreement in November 2007. A Statement of the Case was issued in September 2008. In his substantive appeal, the Veteran stated that his toe disability is a contributing factor in his inability to work. However, in his substantive appeal the Veteran also expressly indicated that he was only appealing the hearing loss, rib, toe, right and left shoulder, and rheumatoid arthritis issues. Thus, the TDIU issue is not in appellate status. See generally 38 U.S.C.A. § 7105 (West 2002). Additionally, the St. Petersburg, Florida RO has processed this case since the September 2007 rating decision of the St. Louis, Missouri RO. The Board notes that service connection for arthritis of both hands and both elbows was denied in an unappealed August 1994 rating decision. Review of the current claim by the Veteran shows that he is seeking service connection for arthritis in his entire body. For this reason, the Board has characterized the current rheumatoid arthritis issue as an original claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The issues of service connection for right and left shoulder disabilities and rheumatoid arthritis, as well as the issue of increased rating for residuals of fractures of the right first, second and third toes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In July 2010, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to a compensable evaluation for bilateral hearing loss. 2. In July 2010, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to a compensable evaluation for residuals of fracture of the right ninth rib. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to a compensable evaluation for bilateral hearing loss. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to a compensable evaluation for residuals of fracture of the right ninth rib. 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 FINDINGS AND CONCLUSIONS Bilateral Hearing Loss and Residuals of Fracture of the Right Ninth Rib 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. As noted, in a September 2007 rating decision, the RO denied entitlement to compensable evaluations for bilateral hearing loss and residuals of a fracture of the right ninth rib. At the July 2010 Board hearing, the Veteran indicated that he wished to withdraw his appeal of these issues. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeal on these matters, and the issues of entitlement to compensable evaluations for bilateral hearing loss and residuals of a fracture of the right ninth rib are dismissed. ORDER Entitlement to a compensable evaluation for bilateral hearing loss is dismissed. Entitlement to a compensable evaluation for residuals of a fracture of the right ninth rib is dismissed. REMAND The record reflects that, in August 2007, VA requested copies of the medical records considered in conjunction with the Veteran's application for Social Security Administration (SSA) disability benefits. The Veteran testified at the July 2010 Board hearing that he moved out of Missouri while his application for SSA benefits was being processed and that he has since had to restart the application process in Florida. He testified that he was scheduled for a hearing regarding his SSA application in August 2010. The Veteran's SSA records related to his new application are potentially pertinent to his claims on appeal. Therefore, the Veteran's complete SSA records should be obtained for consideration in connection with the issues on appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) [VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits]. In light of VA's duty to assist [see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010)], the Board finds that a request for these records must be made. The Board notes that a service Report of Medical History dated in November 1993 reflects that the Veteran complained of hand arthritis and a fractured collarbone. Moreover, the Veteran underwent a VA examination in July 1994. The Veteran complained of shoulder pain and was diagnosed with mild arthralgia, perhaps early arthritis without any objective findings. The Board finds that the VA examination and report is inadequate, given the failure by the examiner to determine the etiology of any right and left shoulder and rheumatoid arthritis disabilities. The Board finds that the Veteran should be scheduled for an additional VA examination with regard to the right and left shoulder and rheumatoid arthritis issues. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Prior to this examination, an attempt should be made to obtain potentially outstanding VA treatment records. In the file is a report of hospitalization in October 1993 at the VA medical facility in San Antonio. From the Veteran's testimony, it appears he also sought outpatient treatment "once or twice" at this facility. It is not known whether any records exist that show relevant complaints, but an attempt should be made to obtain existing records. The Veteran underwent a VA examination in September 2007 with regard to the residuals of fractures of the right first, second and third toes. The examiner noted that the claims file was not available for review. In January 2008, the Veteran's representative argued for a new VA examination because the September 2007 VA examiner did not review the Veteran's claims file. The Board believes that the Veteran should be scheduled for another VA examination and opinion, based on a review of the claims file and medical records, with regard to the residuals of fractures of the right first, second and third toes. Moreover, the Board is of the opinion that the Veteran should be afforded another VA examination since more than three years have passed. Accordingly, the case is REMANDED for the following actions: 1. Obtain from SSA copies of their determination on the Veteran's claims for SSA disability benefits, as well as copies of the medical records considered in conjunction with that determination. 2. Request the Veteran's outpatient records from the VA medical facility in San Antonio, Texas, for treatment in 1993-1994. If appropriate, a search should be made for any archived VA treatment records. 3. After obtaining the above-referenced VA and SSA records, to the extent they exist, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any current right and left shoulder and rheumatoid arthritis disabilities. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current right shoulder disability is related to service. The examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current left shoulder disability is related to service. The examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current rheumatoid arthritis is related to service. A clear rationale should be provided for all opinions rendered. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 4. The Veteran should be scheduled for a VA examination to determine the severity of any current residuals of fractures of the right first, second and third toes. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All examination findings should be reported to allow for application of VA rating criteria. 5. Then the RO should readjudicate the matters on appeal. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the claimant and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review. The Veteran and his representative have 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs