Citation Nr: 1316059	
Decision Date: 05/15/13    Archive Date: 05/29/13

DOCKET NO.  06-16 744	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUES

1.  Entitlement to a rating higher than 70 percent for service-connected posttraumatic stress disorder.

2.  Entitlement to service connection for irritable bowel syndrome.  

3.  Entitlement to service connection for gastroesophageal reflux disease to include as secondary to service-connected posttraumatic stress disorder.

4.  Entitlement to a disability rating higher than 10 percent from May 25, 2005, to April 2, 2009, for service-connected coronary artery disease.

5.  Entitlement to a disability rating higher than 60 percent from August 1, 2009, from for service-connected coronary artery disease.

6.  Entitlement to an effective date prior to June 18, 2008, for the award of a total disability rating based on individual unemployability.

7.  Entitlement to special monthly compensation by reason of being housebound from August 1, 2009.



8.  Entitlement to an effective date prior to June 18, 2008, for the award of educational assistance pursuant to Chapter 35 of Title 38 of the United States Code.

REPRESENTATION

Veteran represented by:	John S. Berry, Attorney

ATTORNEY FOR THE BOARD
J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from June 1961 to May 1963.

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in November 2006, February 2009, and January 2012 of a Department of Veterans Affairs (VA) Regional Offices (RO).

In a rating decision in November 2006, the RO denied the claim of service connection for gastroesophageal reflux disease.  On appeal to the Board, in a decision in May 2009, the Board denied the claim.  The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In an order in January 2010, the Court granted a Joint Motion to Remand of the parties (the VA Secretary and the Veteran), vacated the Board's decision and remanded the case to the Board for readjudication consistent with the Joint Motion.  In June 2010, the Board remanded the case for further development consistent with the instructions in the Joint Motion.  Since the requested development has not been completed, further action to ensure compliance with the Board's remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

In a rating decision in February 2009, the RO denied service connection for irritable bowel syndrome and increased the rating for posttraumatic stress disorder to 70 percent. 

In a rating decision in January 2012, the RO granted service connection for coronary artery disease, a total disability rating based on individual unemployability, special monthly compensation by reason of being housebound, and educational assistance pursuant to Chapter 35.

The claims of service connection for irritable bowel syndrome and gastroesophageal reflux disease, the claim for increase for coronary artery disease, and the claims for an earlier effective date for the award of a total disability rating based on individual unemployability, for special monthly compensation, and educational assistance pursuant to Chapter 35 are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

In January 2012, prior to the promulgation of a decision on the appeal, the Veteran withdrew in writing the claim for a rating higher than 70 percent for posttraumatic stress disorder.

CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran on the claim for a rating higher than 70 percent for posttraumatic stress disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).   


In June 2010, the Veteran perfected an appeal to the Board of the claim for increase for posttraumatic stress disorder. 

In a statement, in writing in January 2012, prior to the Board promulgating a decision on the appeal, the Veteran in writing withdrew the appeal of the claim for a rating higher than 70 percent for posttraumatic stress disorder.  The Veteran's writing clearly evinces intent to withdraw the appeal.  Consequently the Board does not have appellate jurisdiction over the matter.  38 U.S.C.A. § 7105.


ORDER

The appeal of the claim for a rating higher than 70 percent for posttraumatic stress disorder is dismissed.


REMAND

On the claim of service connection for irritable bowel syndrome, on VA examination in May 2009, the Veteran stated that he had been previously evaluated for and diagnosed with irritable bowel syndrome.  The VA examiner diagnosed irritable bowel syndrome, but did not offer an opinion on whether irritable bowel syndrome was related to service. 

On the claim of service connection for gastroesophageal reflux disease, in the Joint Motion for Remand, the parties agreed that the VA examination of March 2007, which the Board relied on in its decision of May 2009, was inadequate and that a remand was necessary to address the question of whether gastroesophageal reflux disease was aggravated by service-connected posttraumatic stress disorder. 
On VA examination in November 2010, the VA examiner did not specifically address aggravation.  



On the claim for increase for service-connected coronary artery disease, in February 2012 in the notice of disagreement, the Veteran stated that his service-connected coronary artery disease was worse. 

On the claim for an effective date prior to June 18, 2008, for the award of a total disability rating based on individual unemployability, the record shows that before September 2005, the Veteran did not meet the minimum percentage requirements for a schedular total disability rating under 38 C.F.R. § 4.16(a), but the Veteran stated that he has not worked since 1996. 

On the claim for special monthly compensation by reason of being housebound from August 1, 2009, the evidence of record is insufficient to decide the claim. 

On the claim for an effective date prior to June 18, 2008, for the award of educational assistance pursuant to Chapter 35 of Title 38 of the United States Code, a decision is deferred until the claim for increase for coronary artery disease and the claim of an earlier effective date for a total rating are finally adjudicated.

Because the record is insufficient to decide the claims for the reasons articulated, the claims are REMANDED for the following action: 

1.  Ask the Veteran to identify the medical records, pertaining to the evaluation and diagnosis of irritable bowel syndrome, and either submit the records or authorize VA to obtain the records on his behalf. 

2.  Afford the Veteran a VA gastrointestinal examination by a VA examiner who has not previous examined the Veteran to determine: 





Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that:

a).  Irritable bowel syndrome is related to service; in the alternative, whether irritable bowel syndrome is caused by or aggravated by service-connected posttraumatic stress disorder; and, 

b).  Whether gastroesophageal reflux disease is aggravated by service-connected posttraumatic stress disorder?

The VA examiner is asked to consider the following: The service treatment records do not show any complaint or finding of a gastrointestinal condition; after service VA records first document a gastrointestinal condition in 2001; and a VA Fact Sheet concerning posttraumatic stress disorder, cites to a study showing a relationship between gastrointestinal symptoms and posttraumatic stress disorder.  

Also in formulating the opinion, the VA examiner is asked to consider that the term "aggravation" means a permanent increase in the claimed disability, that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms.



3.  Afford the Veteran a VA examination to determine the current level of impairment due to coronary artery disease, including:

Congestive heart failure, if present; 

METs testing by exercise or an estimate of METs if for medical reasons testing by exercise cannot be done, and whether the METs result in dyspnea, fatigue, angina, dizziness, or syncope; 

Any left ventricular dysfunction with ejection fraction less than 30 percent.

The VA examiner is also asked to address:

When the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected coronary artery disease before June 18, 2008?  

The Veteran's file must be made available to the examiner for review. 

4.  Afford the Veteran a VA examination to determine whether the Veteran is housebound. 

The Veteran's file must be made available to the examiner for review. 







5.  After completing the above development, adjudicate the claims of service connection for irritable bowel syndrome and gastroesophageal reflux disease to include as secondary to service-connected posttraumatic stress disorder with alcohol dependence and the claim for increase for coronary artery disease, and the claim for special monthly compensation.

On the claim for an effective date prior to June 18, 2008, for the award of a total disability rating based on individual unemployability, if the Veteran did not meet the minimum percentage requirements for a schedular total disability rating under 38 C.F.R. § 4.16(a) before 2005, the claim should be considered under 38 C.F.R. § 4.16(b).  

If any benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case, including on the claim for an effective date prior to June 18, 2008, for the award of educational assistance pursuant to Chapter 35 of Title 38 of the United States Code, and return 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).









The 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs