Citation Nr: 1308570 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-36 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as major depression with bipolar disorder. 2. Entitlement to service connection for the residuals of exposure to asbestos. 3. Entitlement to service connection for facet arthropathy at the level of the 5th lumbar vertebra and 1st sacral segment, claimed as low back pain. 4. Entitlement to an initial compensable evaluation for bilateral hearing loss. 5. Entitlement to an increased rating for the residuals of fracture of the right 5th and 2nd metacarpals, with surgical repair and carpal tunnel release, initially evaluated as 10 percent disabling prior to September 14, 2009, and as 30 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to June 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2006 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. For reasons which will become apparent, the appeal as to the issues of increased ratings for bilateral hearing loss and the residuals of fracture of the right 5th and 2nd metacarpals (with surgical repair and carpal tunnel release) is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. In correspondence of June 2009, the Veteran requested withdrawal of the issue of service connection for an acquired psychiatric disorder, claimed as major depression with bipolar disorder. 2. In correspondence of June 2009, the Veteran requested withdrawal of the issue of service connection for the residuals of exposure to asbestos. 3. In correspondence of June 2009, the Veteran requested withdrawal of the issue of service connection for facet arthropathy at the level of the 5th lumbar vertebra and 1st sacral segment, claimed as low back pain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of service connection for an acquired psychiatric disorder, claimed as major depression with bipolar disorder, have been met. 38 U.S.C.A. §§ 5103, 5103A, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b)(c) (2012). 2. The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of service connection for the residuals of exposure to asbestos have been met. 38 U.S.C.A. §§ 5103, 5103A, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b)(c) (2012). 3. The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of service connection for facet arthropathy at the level of the 5th lumbar vertebra and 1st sacral segment, claimed as low back pain, have been met. 38 U.S.C.A. §§ 5103, 5103A, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b)(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which 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, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2012). In the present case, in correspondence of June 2009, the Veteran withdrew from consideration the issues of entitlement to service connection for an acquired psychiatric disorder (claimed as major depression with bipolar disorder), the residuals of exposure to asbestos, and facet arthropathy at the level of the 5th lumbar vertebra and 1st sacral segment (claimed as low back pain). Inasmuch as the Veteran has withdrawn his appeal regarding those issues, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on those issues, and they are dismissed without prejudice. ORDER The appeal as to the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as major depression with bipolar disorder, is dismissed. The appeal as to the issue of entitlement to service connection for the residuals of exposure to asbestos is dismissed. The appeal as to the issue of entitlement to service connection for facet arthropathy at the level of the 5th lumbar vertebra and 1st sacral segment, claimed as low back pain, is dismissed. REMAND In addition to the above, the Veteran in this case seeks increased evaluations for service-connected bilateral hearing loss, and the residuals of fracture of the right 5th and 2nd metacarpals, with surgical repair and carpal tunnel release. However, a review of the record raises some question as to the severity of each of those service-connected disabilities. In that regard, a review of the record discloses that the Veteran last underwent a VA audiometric examination for compensation purposes in December 2010, more than two years ago. Moreover, the Veteran's last Compensation & Pension examination for the purpose of determining the severity of his service-connected residuals of fracture of the right 5th and 2nd metacarpals (with surgical repair and carpal tunnel release) was undertaken in September 2009, at this point, more than three and one-half years ago. Significantly, at the time of a hearing before the undersigned Veterans Law Judge in September 2012, the Veteran indicated that, since the time of his last VA examination, his service-connected right hand disability had become progressively worse. See Transcript, page 8. Moreover, later in that same hearing, the Veteran gave testimony to the effect that, since the time of his last VA audiometric examination, his hearing had "gone downhill." See Transcript, page 19. Under the circumstances, the Board is of the opinion that additional, more contemporaneous VA examinations would be appropriate prior to a final adjudication of the Veteran's claims for increase. See Snuffer v. Gober, 10 Vet. App.400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Finally, based on evidence contained in the file, it is clear that the Veteran has in the past and continues to receive Social Security disability benefits. Where (as in this case), VA has actual notice that the appellant is receiving disability benefits from the Social Security Administration, and such information is arguable relevant, the duty to assist requires VA to obtain a copy of the decision and any supporting medical records upon which the award was based. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should contact the Social Security Administration, with a request that they provide a copy of the decision concerning the Veteran's claim for Social Security disability benefits. Any medical records utilized in the award of Social Security benefits should likewise be requested. Once obtained, all such information and records should be made a part of the Veteran's claims folder. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to December 2010, the date of the most recent VA examination of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded an additional VA audiometric examination, as well as additional examinations by other appropriate examiners, in order to more accurately determine the severity of his service-connected hearing loss and residuals of fracture of the right 5th and 2nd metacarpals, with surgical repair and carpal tunnel release. The Veteran is to be notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claims. The Veteran is hereby advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examinations, and in accordance with the latest worksheets for rating hearing loss and orthopedic/neurologic disabilities, the examiners should provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected hearing loss and residuals of fracture of the right 5th and 2nd metacarpals, with surgical repair and carpal tunnel release. As regards the Veteran's service-connected residuals of fracture of the right 5th and 2nd metacarpals, the appropriate examiner should specifically comment regarding all neurological manifestations, as well as limitation of motion, and any functional loss associated with pain, weakened movement, excess fatigability, instability, incoordination, swelling, and deformity or atrophy or disuse. The examiner should also discuss factors associated with disability, such as objective indications of pain on pressure or manipulation. In addition, the examiner should inquire as to whether the Veteran experiences flare-ups associated with the service-connected residuals of fracture of the right 5th and 2nd metacarpals. To the extent possible, any additional functional loss or limitation attributable to such flare-ups should be described. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiners prior to completion of the examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 4. The RO/AMC should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 5. The RO/AMC should then readjudicate the Veteran's claim for an initial compensable evaluation for service-connected bilateral hearing loss, as well as his claim for an increased rating for the residuals of fracture of the right 5th and 2nd metacarpals, with surgical repair and carpal tunnel release, initially evaluated as 10 percent disabling prior to September 14, 2009, and as 30 percent thereafter. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in September 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs