Citation Nr: 1305702	
Decision Date: 02/19/13    Archive Date: 02/27/13

DOCKET NO.  09-35 144	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for gout.

2.  Entitlement to a disability rating in excess of 40 percent for recurrent low back strain with degenerative changes of the dorsal lumbar spine.  

3.  Entitlement to total disability rating for compensation based on individual unemployability (TDIU).   


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. R. dela Rosa, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1976 to May 1979, May 1980 to March 1987, and from July 1987 to February 1990.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2008 and November 2011 by the Regional Office (RO) in Phoenix, Arizona.   

In December 2012 a videoconference hearing was held before the undersigned Veterans Law Judge.  The transcript of that hearing is of record.  

Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 

The issues of entitlement to a disability rating in excess of 40 percent for the low back and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

During the December 10, 2012, Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal regarding the gout issue.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal concerning the issue of service connection for gout by the Veteran (or his or her 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

Service connection - Gout

On December 10, 2012, the Veteran testified at a videoconference hearing over which the undersigned Veterans Law Judge presided.  At the hearing, the Veteran indicated that he wished to withdraw from appellate consideration his claim for service connection for gout.  In a statement dated in January 2013, the Veteran further indicated that he wished to withdraw from appellate consideration his claim for service connection for gout.

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 Veteran or by his or her authorized representative.  38 C.F.R. § 20.204.  

The Board finds that the Veteran's statement indicating his intention to withdraw his appeal, once transcribed as part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). 

As the Veteran has withdrawn his appeal as to the claim for service connection for gout, there remains 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 for entitlement to service connection gout is dismissed.


REMAND

During the December 2012 Board hearing, the Veteran testified that he is in recent receipt of Social Security Administration (SSA) disability benefits, based on his back disability, among others.  The Veteran further testified that his physician believes his service-connected disabilities prevented him from working.  It does not appear, however, that the administrative decision and the records upon which SSA relied in reaching its decision have been associated with the Veteran's claims file.  The Court has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims.  Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992); see also 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Those records should be requested, and associated with the Veteran's claims file.

The Board also observes that the Veteran receives ongoing VA treatment.  However, the most recent VA treatment records are current only as of June 2008.  A review of the Veteran's Virtual VA eFolder revealed no recent VA treatment records have been associated with the Veteran's file.  As there potentially are outstanding VA medical records relevant to the appeal, there is a duty to obtain such records.  The claims file should also be updated to include recent VA treatment records dating from June 2008.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Associate, with the claims folder, physically or electronically, VA medical records pertaining to the Veteran that are dated since June 2008.  Any additional records identified by the Veteran also should be sought.

2.  Notify the Veteran that he may submit additional lay statements from himself, as well as from other individuals who have first-hand knowledge of his low back symptoms and purported inability to work.  He should be provided an appropriate amount of time to submit this lay evidence.  

3.  Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with any supporting medical records.  

4.  After undertaking any additional development as may become indicated upon completion of the above, (including conducting any examinations), re-adjudicate the Veteran's claims.  If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond before returning the case to the Board. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs