Citation Nr: 1316398	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO.  09-05 765	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for right hand disability.

2.  Entitlement to service connection for left hand disability.

3.  Entitlement to service connection for disability of the neck/cervical spine.

4.  Entitlement to service connection for a left ankle disability

5.  Entitlement to service connection for a right ankle disability.

6.  Entitlement to service connection for a left foot disability.

7.  Entitlement to service connection for right hip disability.

8.  Entitlement to service connection for a left hip disability. 

9.  Entitlement to service connection for a left wrist disability.

10.  Entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to diabetes mellitus. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active military duty from February 1968 to October 1969.

The appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Board notes that the Veteran perfected an appeal for service connection for heart disability but that issue was resolved by a July 2011 rating decision granting service connection for the Veteran's heart disability.
 
With the exception of the issues of entitlement to service connection for left hand disability, the issues on appeal are addressed in the REMAND that follows the ORDER section of this decision. 





FINDING OF FACT

In March 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's authorized representative that the Veteran desires to withdraw his appeal for service connection for disability of the right hand.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal for service connection for disability of the right hand 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  (2011).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In a statement received by the Board in March 2013, the Veteran's authorized representative stated that the Veteran desired to withdraw his appeal for service connection for disability of the right hand.  Therefore, there remains no allegation of error of fact or law for appellate consideration.  Consequently, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal.  


ORDER

The appeal for entitlement to service connection for right hand disability is dismissed. 


REMAND

The Veteran through his authorized representative contends that he should be afforded VA examinations addressing the etiology of the joint disabilities at issue in this appeal.  The representative accurately notes that the Veteran has yet to be afforded a VA examination specifically addressing the etiology of the joint disabilities at issue. 

The Board notes that VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).  The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold.  McLendon, 20 Vet. App. at 83.

In his argument, the authorized representative has identified evidence showing that the requirements for providing a VA examination to determine the etiology of the claimed joint disabilities have been met.  The Board agrees with the argument submitted by the representative.

The Veteran's authorized representative also contends that the report of the VA examination in April 2008 addressing the Veteran's diabetes mellitus and complications thereof is in adequate because the examiner provided insufficient rationale for the conclusion that it was not at least as likely as not that the peripheral neuropathy was causally related to the Veteran's diabetes mellitus.  Indeed, the report of that examination provides essentially no rationale to support the opinion.  Moreover, the examiner did not provide an opinion concerning whether the Veteran's peripheral neuropathy was aggravated by his diabetes mellitus.  An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Accordingly, an addendum with a rationale for the opinion expressed should be sought from the April 2008 VA examiner.  

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include records pertaining to the Veteran's treatment within the North Texas Health Care System (VAMC Dallas, Bonham, Ft. Worth Outpatient Clinics, and all Outpatient Clinics in the North Texas Health Care System jurisdiction). 

2.  Thereafter, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of the Veteran's claimed disabilities of the left hand, neck/cervical spine, left foot, left and right hips, right ankle and left wrist.  The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

For each neck/cervical spine, left foot, left hand and left wrist disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated in service or is otherwise etiologically related to the Veteran's active service.  For purposes of the opinions, the examiner should assume that the Veteran is credible.

For each disorder of the hips and right ankle present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder was caused or aggravated (permanently increased in severity) as a result of the Veteran favoring his left ankle.  For purposes of the opinions, the examiner should assume that the Veteran is credible.

The rationale for each opinion expressed must also be provided.  If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided.

3.  Also after completing remand instructions 1 and 2, return the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files to the VA examiner who conducted the VA examination in April 2008 addressing the Veteran's diabetes mellitus and complications thereof.

The examiner should be requested to again review the record and state an opinion as to whether there is a 50 percent or better probability that the Veteran's peripheral neuropathy of the lower extremities was caused by his diabetes mellitus.  If the examiner is of the opinion that the peripheral neuropathy was not caused by the diabetes mellitus, then the examiner should provide an opinion as to whether there is a 50 percent or better probability that the peripheral neuropathy was aggravated by the diabetes mellitus.   

The rationale for each opinion expressed must also be provided.  If the examiner is unable to provide any required opinion, he should explain why the opinion cannot be provided.

If the April 2008 examiner is not available, the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files should be provided to and reviewed by another physician with sufficient expertise who should be requested to provide the required opinions with supporting rationale.

Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions.

4.  Undertake any other indicated development.

5.  Thereafter, readjudicate the Veteran's claims.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case and an appropriate opportunity to respond.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs