Citation Nr: 1305087 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-06 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for lateral epicondylitis of the right elbow, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for degenerative disc and joint disease of the cervical spine, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for chondromalacia patella of the left knee, status post arthroscopic lateral release, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Huntington, West Virginia. In July 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The Board notes that, in the February 2010 statement of the case (SOC) and at the July 2012 hearing, the issue involving diabetes mellitus was inadvertently characterized as entitlement to a rating in excess of 10 percent. A review of the file, however, shows that the issue should have been characterized as entitlement to a rating in excess of 20 percent. The May 1995 rating decision granting service connection shows that a rating of 20 percent was assigned effective from February 1, 1995. The code sheet attached to each subsequent rating decision also confirms the 20 percent evaluation. Therefore, it appears that the issue was mistakenly mischaracterized in the SOC and the later Board hearing. There is no indication that the Veteran has not been receiving his full 20 percent rating throughout the appeal. Accordingly, the issue has been recharacterized as reflected in the title page above. The Board also notes that additional medical evidence has been added to the claims file, including the Virtual VA file, since the November 2010 supplemental statement of the case (SSOC) without a waiver of the RO's initial consideration. The single claim adjudicated below is being dismissed at the Veteran's request, and thus, there is no risk of prejudice to him from proceeding without the waiver. Moreover, because the remainder of the appeal is being remanded for other action, the RO will have the opportunity to review the evidence received since the November 2010 SSOC and issue a SSOC. See 38 C.F.R. § 19.31 (2012). The issues of entitlement to increased ratings for the Veteran's cervical spine disability, left knee disability, and diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran in this case served on active duty from January 1975 to January 1995. 2. On the record at the July 2012 Board hearing, prior to the promulgation of a decision in the appeal, the Board was notified by the appellant and his attorney that a withdrawal of the claim for entitlement to an increased rating for lateral epicondylitis of the right elbow from appeal is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal for entitlement to an increased rating for lateral epicondylitis of the right elbow by the appellant and his authorized representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 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 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran and his attorney have withdrawn the claim for entitlement to an increased rating for lateral epicondylitis of the right elbow from the appeal, and hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for the issue of entitlement to an increased rating for lateral epicondylitis of the right elbow, and it is dismissed. ORDER The appeal for entitlement to an increased rating for lateral epicondylitis of the right elbow is dismissed. REMAND The Board's review of the claims file reveals that further RO action on the claims remaining on appeal is warranted. Initially, the Board finds there appear to be outstanding pertinent private medical records relevant to the claims remaining on appeal. Specifically, at the July 2012 hearing, the Veteran testified that his primary care physician is Dr. L. (initials used to protect the Veteran's privacy) from a private internal medicine group. Hearing Transcript, pp. 4-5. He indicated that he sees this physician roughly every three to four months, that he had most recently seen him in approximately April or May 2012, and that he had an upcoming appointment in August 2012. Id. The Veteran's attorney requested an extension of time in order to submit records from that physician. While records from the facility were submitted subsequent to the hearing, there are no specific records from Dr. L. A review of the entire claims file does not reveal any records from Dr. L. dated from any time. As Dr. L. is the Veteran's primary care physician, these records appear relevant to the claims on appeal. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." The records must be requested. A remand is also necessary in order to afford the Veteran current VA examinations for the claims on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that, when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). With regard to the cervical spine claim, at the July 2012 hearing, the Veteran testified that his disability has worsened since his last VA examination in October 2010. Hearing Transcript, pp. 3-4. Specifically, he stated that the range of motion in his neck has decreased. Id. He also indicated that he suffers from radiating pain down his arms and in his right shoulder due to his neck. Id. at 8-9. A review of the October 2010 VA examination report shows that no radiculopathy of the right upper extremity was found. A prior VA examination report of January 2010 showed sensory abnormalities in the upper extremities, but the etiology of these findings was not discussed. In light of the foregoing, the Board deems it necessary to remand this claim for a more recent VA examination to determine the current severity and neurological manifestations of the Veteran's cervical spine disability. With regard to the left knee claim, at the July 2012 hearing, the Veteran testified that the instability in his left knee has worsened since his last VA examination. Hearing Transcript, p. 3. Specifically, the Veteran testified that his left knee gives way two to three times per week. Id. at 14. He also testified that he has been prescribed a knee brace. Id. A review of the last VA examination of October 2010 shows that the Veteran had not been prescribed a brace at that time. Further, the examiner found no instability of the left knee, but did not appear to conduct any type of testing in reaching that determination. Therefore, a more recent VA examination is needed to determine the current severity and manifestations of the Veteran's left knee disability. With regard to the claim for diabetes mellitus, at the July 2012 hearing, the Veteran testified that his diabetes has worsened since his last VA examination. Hearing Transcript, pp. 3, 12. Specifically, the Veteran stated that his diabetes now requires insulin, a restricted diet, and regulation of activities. Id. at 10-11. He also indicated that his doctor has told him not to exercise. Id. at 9. A review of the last VA examination of March 2009 shows that the Veteran had no restriction of activities at that time. Accordingly, a more recent VA examination is needed to determine the current severity and manifestations of the Veteran's diabetes mellitus. Finally, the Board observes that additional medical evidence has been added to the claims file, as well as the Virtual VA system, which has not been considered by the RO. A supplemental statement of the case (SSOC) was not issued upon the receipt of this evidence, and the Veteran did not submit a waiver of the RO's initial consideration of all of the evidence. As such, the additional evidence must be referred to the RO for review and preparation of a SSOC, if a grant of the benefits sought is not made. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he provide any authorization forms necessary to allow the RO to obtain updated treatment records from Dr. L. from the private internal medicine group. Thereafter, the RO should attempt to obtain those records. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 2. Thereafter, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected cervical spine and left knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected cervical spine and left knee disabilities. The examiner should report all signs and symptoms necessary for rating the Veteran's disabilities under the rating criteria. For the cervical spine, the examiner the examiner should provide the range of motion of the cervical spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of any incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. For the left knee, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should also be afforded a VA examination to ascertain the current severity and manifestations of his service-connected diabetes mellitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected diabetes mellitus. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should indicate whether his diabetes mellitus requires insulin, restricted diet, and regulation of activities. In discussing the regulation of activities, the examiner should state whether the Veteran's occupational and recreational activities must be restricted due to his diabetes mellitus. The examiner should also indicate whether the Veteran experiences episodes of ketoacidosis or hypoglycemic reactions, and if so, how frequently such episodes necessitate hospitalization or visits to a diabetic care provider. The examiner should identify and describe all complications of the Veteran's diabetes. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. 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). 5. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 6. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claims should be readjudicated. All applicable laws and regulations, and all evidence received since the November 2010 supplemental statement of the case, to include in the electronic claims file, should be considered. If any benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. The appellant 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs