Citation Nr: 1312877 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-03 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 2. Entitlement to service connection for a bilateral eye disability, to include retinopathy, claimed as secondary to service-connected diabetes. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in March 2011. A transcript of the hearing is of record. At the hearing, the undersigned held the record open for 30 days to allow the Veteran to submit additional evidence. Board Hearing Tr. at 2. Such evidence was submitted in April 2011 without a waiver of initial RO consideration. The claim of service connection for a bilateral eye disability, to include retinopathy, was originally adjudicated as a claim of service connection for diabetic retinopathy. The record reflects the Veteran also has diagnoses of cataracts in each eye. To ensure that any diagnosis of a bilateral eye disability is considered, the Board has recharacterized the issue as a claim of service connection for an eye disability, to include retinopathy. See generally Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009) (finding that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The issue of service connection for a bilateral eye disability is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT At his March 2011 Board hearing, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal regarding service connection for peripheral neuropathy of the right lower extremity. CONCLUSION OF LAW The criteria for withdrawal of the Veteran's Substantive Appeal regarding service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION At his March 2011 Board hearing, the Veteran stated that he wished to withdraw his appeal regarding service connection for peripheral neuropathy of the right lower extremity. See Board Hearing Tr. at 2; VA Form 21-4138, received March 23, 2011. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). The Veteran has properly withdrawn his appeal seeking service connection for peripheral neuropathy of the right lower extremity. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. ORDER The appeal concerning entitlement to service connection for peripheral neuropathy of the right lower extremity is dismissed. REMAND The Veteran seeks service connection for a bilateral eye disability, to include retinopathy, claimed as due to service-connected diabetes mellitus. Before the Board can adjudicate this claim on the merits, additional development is required. I. VA Treatment Records At the March 2011 hearing, the Veteran testified that he receives ongoing treatment for his eyes at the White City, Oregon VA Medical Center (VAMC) and that he had been seen a few months prior to his hearing. Board Hearing Tr. at 7-8. Additionally, in a January 2009 statement, the Veteran reported that he has received treatment at the Klamath Falls Community Based Outpatient Clinic (CBOC) and at the Roseburg VAMC. The most recent VA treatment records are from January 2011. On remand, all updated pertinent VA treatment records from these facilities should be obtained. II. VA Examination The Veteran alleges that he has a bilateral eye disability that is secondary to his service-connected diabetes. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is service-connected for diabetes. What remains to be established is that he has an eye disability that is related to his service-connected diabetes. On October 2006 and May 2008 VA examinations, the examiners concluded that the Veteran did not have diabetic retinopathy in either eye. July 2006, June 2007, and November 2010 VA treatment records also reflect findings of no diabetic retinopathy. However, a July 2009 private treatment record from Dr. R.C. and a November 2010 VA treatment record reflect diagnoses of senile cataracts. Further, at the March 2011 hearing, the Veteran indicated that his eye related symptoms had increased in severity since the May 2008 examination as he reported that he had experienced blurred vision for the last year. Additionally, he testified that he had symptoms of dry eyes, floaters, and feeling pressure in the eyes. Board Hearing Tr. at 4. As this evidence indicates a change in symptoms since the most recent examination, a new examination is necessary to determine if the Veteran has retinopathy and whether any already-diagnosed eye disability is secondary to his service-connected diabetes. III. Initial AOJ Review In April 2011, the Veteran submitted pertinent treatment records from Dr. R.C., without a waiver of initial AOJ review. Therefore, these records must be reviewed by the AOJ on remand. 38 C.F.R. § 20.1304(c) (2012). IV. Temporary File A review of the Veteran's eFolder in VA's electronic records system indicates that a temporary hard copy file at the Portland Regional Office may contain pertinent records. Specifically, an October 2011 rating decision, which addresses issues separate from the issue before the Board, shows that VA has obtained Social Security Administration records and an August 2011 general medical examination. Since these records could contain information pertinent to the Veteran's claim, the temporary file must be associated with the claims file on remand. Accordingly, the case is REMANDED for the following actions: 1. Associate the records from any temporary files with the Veteran's permanent VA claims file. 2. Obtain the Veteran's VA treatment records from the White City and Roseburg VAMCs and the Klamath Falls CBOC from January 2011 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in items 1 and 2, schedule the Veteran for an appropriate examination to determine the etiology of any diagnosed eye disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. The examiner must complete any necessary diagnostic testing and consultations to determine whether the Veteran has retinopathy or any other eye disability. The examiner should specifically address the following questions: a.) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed eye disability, to include cataracts, is causally related to service-connected diabetes? b.) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed eye disability, to include cataracts, is aggravated beyond the normal course of the condition by service-connected diabetes? A report of the opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal (to include consideration of any evidence submitted without a waiver of initial AOJ review). If the benefit sought on appeal remains denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). ______________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs