Citation Nr: 1124548 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 08-13 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to an initial evaluation in excess of 40 percent for residuals of left shoulder dislocation with biceps tendon rupture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from December 1983 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for residuals of rotator cuff tear, left shoulder minor, and assigned a noncompensable evaluation effective May 17, 2006. The rating decision also denied service connection for residuals of dislocated left shoulder (minor) and degenerative disc disease (DDD) of the spine with radiculopathy. In a September 2009 rating decision, the RO recharacterized the service-connected shoulder disability as residuals of left shoulder dislocation with biceps tendon rupture. In the September 2009 determination, the RO also increased the initial evaluation from noncompensable (0 percent) to 40 percent. In a March 2008 Hearing Options Form, the Veteran marked that he did not wish to have a local hearing. In an April 2009 statement, in contrast, he requested that a hearing before a Decision Review Officer (DRO) at the RO be scheduled. Although a DRO hearing was not subsequently scheduled, the Board finds no prejudice to the appellant on the issue of entitlement to an initial evaluation in excess of 40 percent for residuals of left shoulder dislocation with biceps tendon rupture, in light of his October 2009 withdrawal of his appeal on that issue. In February 2011, the Veteran filed a motion to have his appeal advanced on the docket due to financial hardship. The Board denied his motion in May 2011 based on a determination that there was insufficient supporting evidence demonstrating severe financial hardship. The issue of service connection for a cervical spine disorder 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. FINDINGS OF FACT In October 2009, which was prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal was requested on the issue of entitlement to an initial evaluation in excess of 40 percent for residuals of left shoulder dislocation with biceps tendon rupture. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met on the issue of entitlement to an initial evaluation in excess of 40 percent for residuals of left shoulder dislocation with biceps tendon rupture. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2010). Withdrawal may be made by an appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran filed an Appeal Status Election form in October 2009, in which he marked that his appeal was satisfied with the appeal as to the issue of entitlement to a higher evaluation for the left shoulder. Thus, he has withdrawn his appeal on this issue. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal is dismissed on the issue of entitlement to an initial evaluation in excess of 40 percent for residuals of left shoulder dislocation with biceps tendon rupture. REMAND Upon review, the Board finds that further development is warranted on the claim of service connection for a cervical spine disorder. First, as indicated in the Introduction above, the Veteran submitted a statement in April 2009 requesting a DRO hearing. A DRO hearing was not subsequently scheduled, and the Veteran has not withdrawn his hearing request. Thus, upon remand, the Veteran should be scheduled for a hearing before the RO's hearing office, if he still desires such a hearing. 38 C.F.R. § 20.1507 Second, remand is necessary to obtain outstanding VA and non-VA treatment records. With regard to the VA treatment records, a March 2007 VA neurosurgery treatment record refers to treatment at VA since May 2006, including a history of a surgery (left C5-6 foraminotomy) in August 2006. The VA treatment records prior to June 2006 are not of record. The claims file currently contains records from June 2006 to August 2007, but the records relating to the August 2006 surgery are incomplete. Accordingly, upon remand, the RO should obtain and associate with the claims file all outstanding VA treatment records. Similarly, the record is replete with reference to the Veteran's account of a cervical spine surgery performed at a private hospital (Hartford Hospital) during the 1990s. A March 2007 VA neurosurgery record, in particular, refers to a "cervical spine laminectomy (?)" in 1993-1994. A February 2008 VA examination indicates that the surgery occurred in 1992. The private records related to this surgery are currently outstanding. Although the March 2007 rating decision on appeal indicates that the RO sent two requests for the records, the claims file includes no copies of the requests sent. The Board finds that further attempts must be made to attempt to obtain these private records. They are especially important as all medical opinions addressing the issue on appeal rely on the Veteran's own account of his history, which have been conflicting. Therefore, the missing private treatment records are highly pertinent and should be obtained. In this same regard, the evidence contains conflicting medical opinions. The Veteran contends that a cervical spine disorder is related to an in-service motorcycle accident, but the favorable opinions are based on a questionable factual basis and are, therefore, not adequate to decide the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (a medical opinion is not probative unless based on an accurate and fully informed factual foundation). The Veteran was afforded a VA examination in February 2008. The VA examiner, after reviewing the conflicting accounts of the Veteran's history, determined that she was "unable to conclude that the [V]eteran[']s degenerative C spine findings per se are related to his SC condition" as suggested by VA neurology. The VA examiner's opinion is not adequate in light of the outstanding private treatment records. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). Therefore, a new VA examination is necessary after all missing treatment records identified above have been obtained (or after determining that such records are unavailable and cannot be obtained). Accordingly, the claim is REMANDED for the following action: 1. The RO should schedule the Veteran for a DRO hearing at the RO. The Veteran and his representative must be provided proper notice of the date and time of the scheduled hearing and the notification must be documented in the claims file. If the Veteran no longer desires the requested hearing, this should be clearly documented in the claims file. 2. After the Veteran has signed any necessary releases, the RO should make as many attempts as necessary to obtain all pertinent records identified by the Veteran, if not already associated with the claims file, to particularly include treatment records from Hartford Hospital. The RO should also obtain all of the Veteran's outstanding VA treatment records. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review. 3. After completing the above requested development, the RO should arrange for the Veteran to undergo an appropriate VA examination to determine the nature and likely etiology of the claimed cervical spine disorder. The entire claims file, including a copy of this remand, must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner should provide a current diagnosis and specifically indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a cervical spine disorder that is consistent with the documented motorcycle injury during the Veteran's service in October 1986, or is otherwise etiologically related to any incident or circumstance of his service. In making this determination, the examiner is asked to address the favorable and unfavorable medical opinions of record addressing this issue, including by a VA neurosurgeon in March 2007, a VA examiner in February 2008, and a private (non-VA) orthopedic physician in November 2008. The examiner is asked to also discuss the Veteran's own statements regarding the continuity of his symptomatology since service. The examiner should prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. If the examiner determines that an opinion relating the Veteran's claimed cervical spine disorder to service would be speculative, he or she must clearly explain the reasons supporting this conclusion. 4. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claim in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs