Citation Nr: 1300559	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  09-001A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to a total disability rating for compensation based on individual unemployability.

3.  Entitlement to a disability rating in excess of 30 percent for the residuals of a fracture of the right tibia and fibula with degenerative joint disease of the right ankle.   


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Havelka, Counsel

INTRODUCTION

The Veteran's active military service extended from February 1956 to December 1959.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The issue of entitlement to an increased disability rating in excess of 30 percent for the service-connected residuals of a fracture of the right tibia and fibula with degenerative joint disease of the right ankle is remanded to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

In October 2009, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the issues on appeal involving entitlement to service connection for a low back disability and TDIU.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for service connection for a low back disability have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. § 20.204 (2012).

2.  The criteria for withdrawal of the appeal for entitlement to TDIU have been met.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 20.204 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

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.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In October 2009 the Veteran submitted a letter which stated that he was withdrawing his appeals for service connection for a low back disability and TDIU.  This serves to withdraw these two issues from appellant consideration.  

There remain no allegations of errors of fact or law for appellate consideration with respect to the claim for service connection for a low back disability or entitlement to TDIU.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to these two issues and dismissal is warranted.


ORDER

The appeal for entitlement to service connection for a low back disability is dismissed.

The appeal for entitlement to TDIU is dismissed.


REMAND

The Veteran submitted a copy of a July 2009 VA podiatry treatment record attached to a December 2009 letter.  This record is relevant to the Veteran's claim for an increased rating for his right ankle disability, and indicates that there are other VA treatment records which have not been associated with the claims file.  Complete copies of the Veteran's VA treatment records need to be obtained and placed in the record.  

Records generated by VA are constructively included within the record.  If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

The Veteran's service-connected residuals of a fracture of the right tibia and fibula with degenerative joint disease of the right ankle are currently rated under the provisions for impairment of the tibia and fibula.  See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012).  The most recent VA examination was conducted in February 2008 and does not fully address the rating criteria necessary to sufficiently rate this disorder.  Moreover, the 2009 VA podiatry record shows an ankle brace was prescribed for the Veteran, indicating an increase in severity since the last VA examination.  

When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

Accordingly, the case is remanded for the following action:

1.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA health care professionals and/or facilities where he had been treated for his service-connected right ankle disability since 2005.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  All attempts to secure this evidence must be documented in the 

claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran and his representative must then be given an opportunity to respond.  

2.  The Veteran must be afforded the appropriate VA examinations to determine the current severity of his residuals of fracture of the right tibia and fibula, with degenerative joint disease of the right ankle.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed.  The examiner must specify the dates encompassed by the Virtual VA records that were reviewed.  

The report of examination must include a detailed account of all manifestations of the disability found to be present.  All necessary tests must be conducted, including range of motion testing of the right ankle and x-ray examination of the right ankle; the examiner must review the results of any testing prior to completion of the report.  The examiner must record the range of motion of the right ankle on clinical evaluation, in terms of degrees with a goniometer.  


With respect to the right ankle disability, the examiner must specifically indicate:

* Whether the Veteran's disability results in malunion or nonunion of the tibia and fibula.

* Whether the Veteran has loose motion requiring use of a brace.

* Whether there is ankle disability and is it slight, moderate, or marked.  

* Whether there is ankylosis of the right ankle.  

* Whether the Veteran has limitation of motion of the right ankle, and if so is moderate or marked.  

If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins.  The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion.  Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc.  Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the 

presence or absence of changes in the skin indicative of disuse due to the service-connected right ankle disorder.  

3.  The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4.  After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, implement corrective procedures at once.   

5.  Following the above, the RO must readjudicate the Veteran's claim for entitlement to a disability rating in excess of 30 percent for the residuals of a fracture of the right tibia and fibula, with degenerative joint disease of the right ankle.  The RO must consider if a separate disability rating for arthritis is warranted.  If any benefit on appeal remains denied, a supplemental statement of the case must be issued, and the Veteran and his 

representative must be afforded an opportunity to respond.  Thereafter, the case must be returned to the Board for appellate review.


No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs