Citation Nr: 1305058	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  08-16 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for ventral and umbilical hernias.

2.  Entitlement to service connection for degenerative disc disease of the lumbar spine with right leg radiculopathy, including as secondary to fracture, right great toe with degenerative joint disease, to include residuals of fracture of fourth and fifth right toes.

3.  Entitlement to an evaluation in excess of 20 percent for fracture, right great toe with degenerative joint disease, to include residuals of fracture of fourth and fifth right toes.  

4.  Entitlement to a compensable evaluation for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran had active service from October 1958 to November 1980.  

These claims come before the Board of Veterans' Appeals (Board) on appeal of October 2007 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge in September 2012.

The Veteran also initiated an appeal of the RO's February 2007 rating decision denying him an evaluation in excess of 10 percent for tinnitus.  After the RO issued a statement of the case pertaining to that claim, however, he did not perfect it, instead withdrawing it from appellate review.    

In July 1981 and December 1995, the RO previously denied the Veteran entitlement to service connection for a back disorder.  In so doing, the RO narrowly construed such disorder as left scoliosis, a low back strain and back pain (scoliosis).  It did not contemplate the Veteran's entitlement to the benefit sought based on degenerative disc disease of the lumbar spine and did not mention the Veteran's right leg.  New and material is therefore not needed to reopen the previously denied claim.

A review of the Virtual VA paperless claims processing system reveals no additional, pertinent documents for consideration in support of the claims on appeal.

The claims of entitlement to service connection for degenerative disc disease of the lumbar spine with right leg radiculopathy, entitlement to an evaluation in excess of 20 percent for fracture, right great toe with degenerative joint disease, to include residuals of fracture of fourth and fifth right toes, and entitlement to a compensable evaluation for bilateral hearing are addressed in the REMAND portion of the decision, below, and are REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDING OF FACT

On September 19, 2012, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw his claim of entitlement to service connection for ventral and umbilical hernias.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal on the claim of entitlement to service connection for ventral and umbilical hernias are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105 (West 2012), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2012).  Either an appellant or his or her authorized representative may request withdrawal.  38 C.F.R. § 20.204 (2012). 

On September 19, 2012, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw his claim of entitlement to service connection for ventral and umbilical hernias.  With regard to that claim, there thus remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed.


ORDER

The appeal on the claim of entitlement to service connection for ventral and umbilical hernias is dismissed.


REMAND

Prior to adjudicating the claims of entitlement to service connection for degenerative disc disease of the lumbar spine with right leg radiculopathy, entitlement to an evaluation in excess of 20 percent for fracture, right great toe with degenerative joint disease, to include residuals of fracture of fourth and fifth right toes, and entitlement to a compensable evaluation for bilateral hearing, additional development is necessary.  38 C.F.R. § 19.9 (2012).

During the course of this appeal, in July 2007 and June 2008, the RO assisted the Veteran by affording him VA examinations in support of his claim for an increased evaluation for residuals of fractures of the right foot.  The reports of these examinations are inadequate to rate such residuals.  During his September 2012 hearing, the Veteran testified that his right foot disability had worsened since he underwent these examinations.  

Also, neither examiner considered the collective effect of all components of the Veteran's service-connected right foot disability.  This disability involves residuals of fractures affecting three toes.  In July 2007, the examiner discussed the Veteran's right big and fourth toes.  In June 2008, the examiner discussed the Veteran's right fifth toe.  In addition, neither examiner discussed the severity of the disability in terms necessary to rate the disability under 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012) (disability evaluation determined based on whether foot disability is moderate, moderately severe or severe), inquired as to whether the Veteran experienced flare-ups of right foot symptomatology, or, despite noting symptoms that can be indicative of a neurological deficit (numbness, a burning sensation and diminished light touch sensation), addressed whether there is neurological involvement.  

Another examination of the Veteran's right foot is therefore needed particularly given that the private evidence in the claims file, which includes records of the Veteran's podiatry treatment, suggest that the right foot disability is more severe than the VA examiners have indicated.

A new examination is also needed in support of the Veteran's claim for an increased evaluation for bilateral hearing loss.  Again, during his hearing, the Veteran testified that, since his last VA audiological examination, conducted in August 2007, his hearing has worsened.  

Finally, the Veteran has submitted three medical opinions in support of his claim for service connection for degenerative disc disease of the lumbar spine with right leg radiculopathy, including from a private podiatrist, neurologist and chiropractor.  While the opinions are favorable, even considered collectively, they are not adequate to decide this claim.  The first two (from the podiatrist and neurologist) relate the Veteran's disc disease and radiculopathy to his service-connected right foot disability, but provide no rationale for doing so.  The third (from the chiropractor) includes rationale, but relates back pain, not necessarily the disc disease, to the service-connected right foot disability.  

Given these inadequacies, the RO afforded the Veteran a VA examination of his back, during which the examiner addressed the etiology of the Veteran's lumbar spine disc disease and opined that the disease is not caused by or the result of the right foot disability.  The report of that examination, conducted in June 2008, also is inadequate as it does not address whether the Veteran's service-connected right foot disability aggravates the lumbar spine disc disease.  Such an opinion is necessary in this case as that is the Veteran's primary argument.  

The Board REMANDS these claims to the RO for the following action:

1.  Return the Veteran's claims file to the examiner who reviewed it in June 2008, if available, or to another examiner for an addendum opinion in support of the claim for service connection for degenerative disc disease of the lumbar spine with right leg radiculopathy.  

Ask the examiner to review the claims file, including the written opinions of Drs. Patel, Bikoff and Johnson, and offer an opinion, supported by rationale, on whether the Veteran's service-connected right foot disability aggravates his degenerative disc disease and right leg radiculopathy.  

Also ask the examiner to confirm or refute, with rationale, the private physicians' written opinions relating the Veteran's back pain to his service-connected right foot disability.

2.  Afford the Veteran a VA examination in support of his claim for an increased evaluation for a right foot disability.  Provide the claims file to the examiner for review of all pertinent documents therein, including the written opinions of Drs. Patel, Bikoff and Johnson, and ask him to confirm in his written report that he conducted such a review.  

Inform the examiner that certain symptoms, including pain, numbness, weakness and a burning sensation, are capable of lay observation and that any opinion provided on severity should contemplate such symptoms.  

Ask the examiner to conduct a thorough evaluation, including all indicated tests, and then proceed as follows:  

a) identify all right foot disabilities and abnormalities, including any affecting the right big, fourth and fifth toes; 

b) note all symptoms associated with the disabilities and abnormalities, including, if appropriate, limitation of motion, painful motion, pain on manipulation and/or use and swelling on use;

c) record in detail the Veteran's reported history of any flare-ups of right foot symptoms, including how frequently they manifest and whether and to what extent the Veteran experiences additional loss of motion or other function during flare-ups;

d) objectively confirm any functional loss caused by the Veteran's right foot symptoms, including during flare-ups and on repetitive use; 

e) when considering whether there is functional loss due to weakness, fatigability, incoordination, pain, including on movement of a joint, reduced or excessive excursion, decreased strength, speed, or endurance, or the absence of necessary structures, deformity, adhesion, and/or defective innervation, describe the extent of this loss during flare-ups or after repetitive use in terms of additional loss of motion beyond that which is observed clinically; 

f) note whether and to what extent there is neurological involvement;

g) contemplating any reported flare-ups and neurological involvement and the private physicians' written opinions, characterize the Veteran's right foot disability, to include residuals of the fractures of all toes, as moderate, moderately severe or severe;

h) describe the impact of the Veteran's right foot symptoms on his daily activities and employability, including during flare-ups and on repetitive use; 

i) provide detailed rationale, with specific references to the record, for the opinions provided; and 

j) if an opinion cannot be provided without resort to speculation, discuss why such is the case and whether there is additional evidence that would aid in providing such opinion.

3.  Also afford the Veteran a VA examination in support of his claim for an increased evaluation for bilateral hearing loss.  Provide the claims file to the examiner for review of all pertinent documents therein and ask him to confirm in his written report that he conducted such a review.  

4.  Review the addendum opinion and examination reports to ensure that they include all requested information and, if not, return them to the examiners for correction.  

5.  Readjudicate the claims being remanded based on all of the evidence of record.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case.  

6.  Thereafter, if indicated, return the case to the Board for appellate disposition.      

The Board intimates no opinion as to the ultimate disposition in this case, but advises the Veteran that he has the right to submit additional evidence and argument on the remanded claims.  Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).  
 
These claims must be afforded expeditious treatment.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs