Citation Nr: 1304154 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-01 633 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for high blood pressure. 3. Entitlement to service connection for a back disorder, to include as secondary to the service-connected residuals of a fracture of the right tibia and fibula with tender and painful scar and quadriceps atrophy with traumatic arthritis of the right ankle. 4. Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected right leg disability. 5. Entitlement to service connection for a left foot disorder, to include as secondary to the service-connected right leg disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and January 2010 rating decisions issued by the RO. The Veteran testified at a videoconference hearing from the RO before the undersigned Veterans Law Judge in October 2012; a transcript of his testimony is of record. The Veteran's appeal originally included the issues of service connection for hearing loss, tinnitus and anxiety. During the pendency of the appeal, the RO, in a January 2010 rating decision, granted service connection for mood disorder (claimed anxiety) and assigned a 10 percent rating for the disability, effective on October 8, 2007; the RO granted service connection in a July 2012 rating decision and assigned a noncompensable rating for a bilateral hearing loss and a 10 percent rating for the tinnitus, both effective on October 17, 2007. Therefore, his appeal concerning the issues of service connection for hearing loss, tinnitus and a mood disorder have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). The Board notes that the Veteran did file an increased rating claim for the mood disorder in May 2011. In an August 2011 rating decision, the RO assigned an increased, 30 percent rating for the mood disorder, effective on May 12, 2011. The Veteran did not appeal this rating decision. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of service connection for a back disorder, a left hip condition, and a left foot disorder, to include as secondary to service-connected disability are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In October 2012, prior to the promulgation of a decision, the Veteran withdrew his appeal referable to the claim of service connection for sleep apnea. 2. In October 2012, prior to the promulgation of a decision, the Veteran withdrew his appeal referable to the claim of service connection for high blood pressure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of service connection for sleep apnea have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011). 2. The criteria for withdrawal of the appeal of the claim of service connection for high blood pressure have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (2011). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the October 2012 hearing, the Veteran withdrew the claims of service connection for sleep apnea and high blood pressure from his appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration in this regard. Accordingly, the Board does not have jurisdiction to further review these matters, and the appeals are dismissed. ORDER The appeal referable to the claims of service connection for sleep apnea and high blood pressure is dismissed. REMAND At the outset, the Board notes that under 38 C.F.R. § 3.310(a) (2011), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective on October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006) (see 38 C.F.R. § 3.310(b)). In connection with the January 2008 VA examination, the examiner concluded, in pertinent part, that left lower extremity complaints were secondary to radiculopathy and not the result of right lower extremity complaints (disability). In connection with the December 2009 VA examination, the examiner concluded, in pertinent part, that diagnosed spondylosis and degenerative disc disease of the thoracolumbar spine with bilateral L5 and S1 radiculopathy were not related to the service-connected right lower extremity disability and more likely than not were age-related changes. The Board finds that these examinations failed to adequately address the issue of aggravation of the claimed back, left hip and left foot disorders by the service-connected right leg disability. To this end, an April 2010 VA treatment record showed that the Veteran's lumbosacral degenerative disease and radiculopathy more likely than not had been "affected" by his service-connected right leg disability. Under these circumstances, the Board finds that an additional VA examination is necessary to fully address the likely etiology of the claimed back, left hip and left foot disorders; specifically, whether the claimed back, left hip and left foot disorders were caused or aggravated by his service-connected right leg disability. Any outstanding treatment records referable to the claimed back, left hip and left foot conditions also should be obtained. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should be sent the Veteran a letter explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2011), the need for additional evidence regarding his claims. This letter should reflect all appropriate legal guidance. Allen v. Brown, 7 Vet. App. 439 (1995). 2. The RO then should take appropriate steps to contact the Veteran in order to obtain the names and addresses, and approximate dates of treatment of all medical care providers who treated the Veteran for his claimed back, left hip and left foot disorders. After the Veteran has signed the appropriate releases, copies of previously unidentified and other outstanding records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be entered in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to afford him the opportunity to obtain and submit those records for VA review. 3. The RO also should have the Veteran scheduled for an appropriate VA examination(s) to determine the likely etiology of the claimed back, left hip and left foot disorders. The Veteran's claims folder must be made available for the physician's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. All indicated tests and studies are to be performed. After examining the Veteran and reviewing the entire record, the examiner should provide an opinion as the following questions: (a) Is it at least as likely as not (50 percent chance or better) that the current back disability was caused the service-connected right leg disability? (b) If not, then is the current back disability aggravated (i.e., worsened beyond its natural progression) by the service-connected right leg disability? If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. (c) Is it at least as likely as not (50 percent chance or better) that any current left hip disability is caused by the service-connected right leg disability? (d) If not, then is any current left hip disability aggravated (i.e., worsened beyond its natural progression) by the service-connected right leg disability? If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. (e) Is it at least as likely as not (50 percent chance or better) that any current left foot disability is caused by the service-connected right leg disability? (f) If not, then is any current left foot disability aggravated (i.e., worsened beyond its natural progression) by the Veteran's service-connected right leg disability? If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. A complete rationale must be given for all opinions and conclusions expressed with the medical bases for the conclusions set out. Consideration of pertinent medical evidence (to include the January 2008 VA examination, December 2009 VA examination and April 2010 VA treatment record) should be noted. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 5. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, as 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. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs