Citation Nr: 1311658 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 05-05 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence was submitted to reopen a previously denied claim for entitlement to service connection for amyotrophic lateral sclerosis (ALS). 2. Entitlement to a disability rating in excess of 10 percent, prior to March 6, 2006, and in excess of 60 percent thereafter for ischemic heart disease, status-post myocardial infarction, ischemic cardiomyopathy; atherosclerotic heart disease (claimed as a heart condition), with status-post coronary artery bypass surgery times two (x2). 3. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. 4. Entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder prior to June 4, 2004, and in excess of 50 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active military service from January 1966 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in August 2002 (granted service connection for PTSD and assigned a 10 percent evaluation effective January 21, 1998), February 2004 (granted service connection for ischemic heart disease and assigned a 10 percent evaluation effective July 8, 2003), February 2005 (denied service connection for erectile dysfunction) and January 2010 (denied service connection for ALS) by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issue of entitlement to service connection for ALS was previously denied by the RO in an October 1984 decision and the Veteran was informed of this determination and of his right to appeal by notification provided the following month. As neither a notice of disagreement nor new and material evidence were submitted within one year thereof, the determination became final. By way of a March 2006 rating decision, the RO increased the rating assigned to PTSD to 50 percent effective June 4, 2004. Also by way of a March 2006 rating decision, the RO increased the rating for ischemic heart disease to 60 percent effective March 6, 2006. In April 2006, the Veteran notified the RO that he was satisfied with the rating of 60 percent for his heart condition. Nevertheless, in June 2008, the RO issued a supplemental statement of the case concerning whether an increased evaluation for ischemic heart disease is warranted. In a rating decision dated in February 2004, the RO denied entitlement to an earlier effective date for the grant of service connection of diabetes mellitus; an increased disability rating for diabetes mellitus; callus of the left foot; corn on the fifth and great toe of the right foot; left foot mass; senile cataracts; refractive error; and hammer toes of both feet. The RO also granted service connection for ischemic heart disease and assigned a 10 percent evaluation effective July 8, 2003. In a notice of disagreement received in August 2004, the Veteran asserted that he disagreed with the ratings assigned to his heart disease and diabetes mellitus disabilities. A statement of the case was issued in January 2005 and the Veteran perfected his appeal only with respect to heart disease by way of a February 2005 substantive appeal. The Veteran made clear in that document that he was only appealing the rating assigned to his service-connected heart disease. However, in a notice of disagreement received in March 2005, the Veteran, through a former representative, disagreed with all the issues addressed in the February 2004 rating decision. A Statement of the Case was issued in July 2005 and the former representative filed a substantive appeal in August 2005. A review of the record indicates, however, that the Veteran executed a new unlimited Appointment of Veterans Service Organization Representation form (VA Form 21-22) on February 3, 2005, that was received by VA on February 18, 2005, appointing Disabled American Veterans (DAV) as his representative. Pursuant to 38 C.F.R. § 20.605 (2004), an appropriate designation of a new representative automatically revokes any prior designation of representation. Therefore, the appeal documents filed by the former representative are not valid. The RO recognized this and, by way of a January 2006 letter, informed the Veteran that he should ignore documents sent to him by the RO, including the July 2005 statement of the case, as his former representative had been revoked. The issues of entitlement to higher disability ratings for ischemic heart disease and PTSD, as well as entitlement to service connection for erectile dysfunction 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. FINDING OF FACT On November 19, 2012, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of entitlement to service connection for amyotrophic lateral sclerosis on appeal is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal 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 FINDING 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 (2012). The Veteran, through his authorized representative, submitted a November 2012 statement that indicated that the Veteran wished to cancel/withdraw his pending appeal for entitlement to service connection for amyotrophic lateral sclerosis as the condition has not been clinically diagnosed. Therefore, there remain 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 on the issue of entitlement to service connection amyotrophic lateral sclerosis is dismissed. REMAND Erectile dysfunction The Veteran seeks entitlement to service connection for erectile dysfunction, which he avers is secondary to his service-connected diabetes mellitus, type II. The Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presences of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet.App. 303 (2007). Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not been afforded a VA examination. Ischemic heart disease The Veteran seeks entitlement to an increased disability rating for ischemic heart disease, status-post myocardial infarction, ischemic cardiomyopathy; atherosclerotic heart disease (claimed as a heart condition), with status-post coronary artery bypass surgery times two (x2). While it appears that the Veteran withdrew his claim in a statement dated April 6, 2006, the RO proceeded with the Veteran's appeal as though he did not withdraw the claim. As such, the Board will also consider the Veteran's appeal regarding entitlement to an increased disability rating for ischemic heart disease. The Veteran, through his representative, avers that his service-connected disability is worsening in severity. See August 2008 Statement. The most recent VA examination for the Veteran's service-connected ischemic heart disease, status-post myocardial infarction was in January 2008. In light of the argument, this evidence is inadequate to assess the Veteran's current level of severity. Therefore, a new VA examination is required to assess the current levels of severity of the Veteran's service-connected ischemic heart disease, status-post myocardial infarction. The Board acknowledges that VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). PTSD The Veteran seeks entitlement to a disability rating in excess of 10 percent prior to June 4, 2004, and in excess of 50 percent thereafter. In a rating decision dated in March 2006, the RO increased the rating to 50 percent effective June 4, 2004. Upon granting the 50 percent disability evaluation, the RO informed the Veteran that the increase was a total grant of benefit sought on appeal. Applicable law provides that a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran reported through his representative in a May 2004 statement that he sought a minimum disability rating of 30 percent, accordingly, the appeal was not satisfied by the grant of a 50 percent disability evaluation. The Board acknowledges that VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination to assess the current nature, extent, and severity of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As the Veteran's last VA examination was in January 2005, and a June 2007 record indicates his psychiatric medications were increased, another VA examination is warranted at this time. Since the claims file is being returned it should also be updated to include VA treatment records not already of record that are relevant to the issues on appeal. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Obtain relevant VA medical records pertaining to the issues on appeal that are not already of record. 2. Thereafter, the RO should schedule the Veteran for a cardiology examination to determine the current level of severity of his ischemic heart disease, status-post myocardial infarction, ischemic cardiomyopathy; atherosclerotic heart disease with status-post coronary artery bypass surgery times two (x2). The claims file must be made available to the examiner in conjunction with the examination. The examiner should provide a review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability due to his heart disorder. In particular, the examiner must assess the severity of the Veteran's ischemic heart disease, status-post myocardial infarction, ischemic cardiomyopathy; atherosclerotic heart disease with status-post coronary artery bypass surgery times two (x2), and include a discussion of the associated symptoms, including but not limited to dyspnea, fatigue, angina, dizziness, syncope, left ventricular dysfunction, and/or congestive heart failure, if any. If evidence of congestive heart failure is found, the examiner is asked to discuss the frequency and severity of this condition (i.e., chronic or acute (if acute, how many times in the past year)). The examiner is also asked to discuss the Veteran's heart workload in terms of ejection fraction and METs. 3. The RO should schedule the Veteran for a VA psychiatric examination to determine the extent and severity of his PTSD. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's claimed erectile dysfunction. The examiner should be given a copy of this remand and the Veteran's entire claims file. The examiner should be requested to review the claims file and state that this has been accomplished. (a) The examiner is requested to opine whether is at least as likely as not (50 percent or greater probability) the Veteran's erectile dysfunction is the result of injury or disease incurred in the Veteran's military service. Please provide a complete explanation for the opinion. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was caused by the Veteran's service-connected diabetes mellitus. Please provide a complete explanation for the opinion. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was aggravated (increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected diabetes mellitus. Please provide a complete explanation for the opinion. 5. Ensure that the information provided in the examination reports satisfies the criteria above and, if not, return the report(s) as insufficient. Then readjudicate the Veteran's claims after ensuring that any other development deemed warranted is complete. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). _________________________________________________ S. S. TOTH 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).