Citation Nr: 1310508 Decision Date: 02/26/13 Archive Date: 04/10/13 DOCKET NO. 09-19 115 ) DATE FEB 26 2013 ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for right lower extremity radiculopathy. 2. Entitlement to service connection for left lower extremity radiculopathy. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for a neck disorder. 6. Entitlement to an increased rating for a low back disorder with degenerative changes evaluated as 20 percent disabling prior to May 8, 2009. 7. Entitlement to an increased rating for a low back disorder with degenerative changes evaluated as 40 percent disabling since May 8, 2009. 8. Entitlement to an initial compensable rating for a bilateral hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to May 1971. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2008 rating decision of the VA Regional Office in Indianapolis, Indiana that, among other things, denied service connection for bilateral lower extremity radiculopathy. Following review of the record, the issues of entitlement to service connection for radiculopathy of the lower extremities, and entitlement to an increased rating for a low back disorder with degenerative changes evaluated as 20 percent disabling prior to May 8, 2009, are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran served on active duty from October 1969 to May 1971. 2. On February 11, 2012, prior to the promulgation of a decision, the Veteran requested to withdraw his appeals pertaining to claims of entitlement to service connection for sleep apnea, headaches, and a neck disorder; entitlement to a rating in excess of 40 percent for a low back disorder with degenerative changes since May 8, 2009; and entitlement to an initial compensable rating for a bilateral hearing loss. CONCLUSION OF LAW The criteria to withdraw appeals pertaining to claims of entitlement to service connection for sleep apnea, headaches, and a neck disorder; entitlement to a rating in excess of 40 percent for a low back disorder with degenerative changes since May 8, 2009; and entitlement to an initial compensable rating for a bilateral hearing loss 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 that 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 authorized representative. Id. In the instant case, by letter dated in February 2013, the Veteran through his representative withdrew the appeals of entitlement to service connection for sleep apnea, headaches, and a neck disorder; entitlement to a rating in excess of 40 percent for a low back disorder with degenerative changes since May 8, 2009; and entitlement to an initial compensable rating for a bilateral hearing loss. As to these matters, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. ORDER The appeals to claims of entitlement to service connection for sleep apnea, headaches, and a neck disorder; entitlement to a rating in excess of 40 percent for a low back disorder with degenerative changes since May 8, 2009; and entitlement to an initial compensable rating for a bilateral hearing loss are dismissed. REMAND The Veteran asserts entitlement to an evaluation in excess of 20 percent for a low back disorder with degenerative changes prior to May 8, 2009; and entitlement to service connection for radiculopathy of each lower extremity. The appellant was afforded a VA examination in September 2007 where he had complaints that included “a funny-like sensation going down both of his legs.” Following examination, it was determined that he had chronic back pain but did not have radiculopathy. In the February 2013 Informal Hearing Presentation, the Veteran's representative asserts that the examination was inadequate because, among other things, the examiner did not provide an explanation for the appellant’s history of leg pain in his knees and legs. It is also contended that service connection on a secondary basis should be considered. The Board notes that service connection is in effect for a low back disability with degenerative changes, rated 20 percent disabling prior to May 8, 2009, and 40 percent disabling since. Since the September 2007 VA examination secondary service connection has been granted for fibromyalgia, now rated 40 percent disabling. The record reflects that although the Veteran was afforded VA spine and fibromyalgia examinations in January and June 2011, respectively, no reference was made as to whether he did or did not have radiculopathy. Hence, the Board finds that the Veteran should be afforded a VA examination to clarify whether he currently has radiculopathy, to include as secondary to a service-connected disability. The fulfillment of VA's statutory duty to assist the appellant includes requesting a contemporaneous and thorough VA medical examination when indicated, and providing a medical opinion that takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Additionally, the record indicates that the Veteran has received treatment from VA. The most recent clinical records date through May 2011. As VA has constructive possession of any VA records, they must be retrieved and associated with the other evidence on file. Bell v. Derwinski, 2 Vet.App. 611 (1992). Therefore, records dating from June 2011 to the present should be requested and associated with the claims folder. The Veteran should also be requested to provide authorization identifying any other health care provider who has treated him for radiculopathy, and the RO should attempt to secure these records. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he furnish authorization that identifies all healthcare providers who have treated him for lower extremity radiculopathy since service. VA should request any clinical records that are not already of record. All attempts to conduct this development must be documented in the claims file. 2. Request VA outpatient records dating from June 2011 to the present and associate those records with the claims folder. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a neurological examination by an appropriate VA physician. The claims folder, access to Virtual VA and a copy of this remand must be made available to the examining physician. The examining physician must indicate whether the claims folder and Virtual VA were reviewed. All indicated tests and studies, including, if appropriate, nerve conduction studies, should be performed and clinical findings must be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc. Based on a thorough review of the evidence of record and the physical examination findings, the examiner must opine with a detailed and complete rationale whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran currently has symptoms consistent with radiculopathy that are related to any inservice pathology or to a service-connected disorder, including a low back disability with degenerative changes, and/or fibromyalgia. The examination report must include well-reasoned rationale for all opinions and conclusions reached. 4. The RO must ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned for correction. 5. After taking any further development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. Given the inextricably intertwined nature of the claim of entitlement to service connection for lower extremity radiculopathy, the Board will defer consideration of the issue of entitlement to an evaluation in excess of 20 percent for a low back disorder with degenerative changes prior to May 8, 2009. 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). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012) Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: · Appeal to the United States Court of Appeals for Veterans Claims (Court) · File with the Board a motion for reconsideration of this decision · File with the Board a motion to vacate this decision · File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: · Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA clearly explaining why you believe that the BVA committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that such letter be as specific as possible. A general statement of dissatisfaction with the BVA decision or some other aspect of the VA claims adjudication process will not suffice. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Director, Management, Planning and Analysis (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM AUG 2009 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information, as well as information about free representation through the Veterans Consortium Pro Bono Program (toll free telephone at: (888) 838-7727), is also provided on the Court's website at: http://www.uscourts.cavc.gov. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the General Counsel (022D) 810 Vermont Avenue, NW Washington, DC 20420 The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM AUG 2009 4597 Page 2 SUPERSEDES VA FORM 4597, JUN 2008, WHICH WILL NOT BE USED