Citation Nr: 1319138	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  12-07 576	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim of service connection for a low back disability.  

2.  Entitlement to service connection for a hernia.  

3.  Entitlement to service connection for ulnar neuropathy.  

4.  Entitlement to service connection for osteomyelitis.  

5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos.  

6.  Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU).  




REPRESENTATION

Appellant represented by:	Michael J. Kelly, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel


INTRODUCTION

The Veteran had active service from December 1969 to February 1974.  

By rating action in July 1997, the RO denied service connection for a low back disability.  The Veteran was notified of this decision and did not appeal.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision by the RO which denied the benefits sought on appeal.  The Board remanded the appeal in January 2013, to comply with the Veteran's request for a personal hearing.  A videoconference hearing before the undersigned was held in March 2013.  

The issues of entitlement to service connection for COPD and entitlement to TDIU 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.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDING OF FACT

At the videoconference hearing in March 2013, prior to the promulgation of a decision in this appeal, the Veteran advised VA that he wished to withdraw his appeal of the claims of service connection for a hernia, ulnar neuropathy, osteomyelitis and to reopen service connection for a low back disability.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal to reopen the claim of service connection for a low back disability by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).  

2.  The criteria for withdrawal of a Substantive Appeal for service connection for a hernia by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).  

3.  The criteria for withdrawal of a Substantive Appeal for service connection for ulnar neuropathy by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).  

4.  The criteria for withdrawal of a Substantive Appeal for service connection for osteomyelitis by the Veteran 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 CONCLUSIONS

Withdrawn Issues

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  At the videoconference hearing in March 2013, the Veteran indicated that he wanted to withdraw his appeal of the claims of service connection for a hernia, ulnar neuropathy, osteomyelitis and to reopen service connection for a low back disability.  Hence, there remain no allegations of error of fact or law for appellate consideration as to these issues.  Accordingly, the Board does not have jurisdiction to review the appeal of these claims, and the issues are dismissed.  


ORDER

The appeal of the claim to reopen service connection for a low back disability is dismissed.  

The appeal of the claim of service connection for a hernia is dismissed.  

The appeal of the claim of service connection for ulnar neuropathy is dismissed.  

The appeal of the claim of service connection for osteomyelitis is dismissed.  


REMAND

The Veteran contends that his COPD was caused by exposure to asbestos, diesel fumes, and other toxic substances while working as an engine mechanic in the Navy during service.  At the videoconference hearing, the representative asserted that since his discharge from service, the Veteran worked primarily in outside jobs as a fisherman and equipment operator in Alaska and Maine where his exposure to toxic fumes was essentially nil, and that it was more likely that his current respiratory problems were related to exposure to toxic fumes in service.  (T p.3-4).  

The representative also argued that while the Veteran was examined by VA during the pendency of the appeal, the examiner's opinion was limited solely to whether his COPD was due to asbestos exposure in service, and did not address any other possible causal etiologies.  Given the limited scope of the VA opinion, the representative asserted that the August 2010 examination was inadequate and requested that the Veteran be afforded a more comprehensive examination to address those deficiencies.  The representative also reported that the Veteran was scheduled for pulmonary function studies at VAMC West Roxbury in the next few weeks, and requested that those records be obtained and associated with the claims file.  The TDIU issue is inextricably intertwined with the COPD issue, and so disposition of this issue is deferred.  

In light of the discussion above, the claim is REMANDED to the AMC for the following action:  

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)  

1.  With appropriate assistance from the Veteran, the AMC should attempt to obtain the names and addresses of all health care providers who treated him for any respiratory problems since 2010 (date of last treatment report of record).  After the Veteran has signed the appropriate releases, all available outstanding records should be obtained and physically or electronically associated with the claims folder.  Of particular interest are any VA pulmonary function studies reportedly scheduled at West Roxbury VAMC in March/April 2013.  

2.  After any additional records have been obtained, the Veteran should be scheduled for appropriate VA, respiratory examination to determine the nature and etiology of any identified respiratory disorder, including COPD.  The claims folder and a copy of this remand should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the reports.  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified respiratory disorder, including COPD was first manifested in service or is otherwise related to service, including exposure to toxic substances, such as, (i) asbestos, (ii) diesel fuel, (iii) grease on machinery, (iv) cleaning solvents/solutions used to clean up grease and the boilers, (v) carbon monoxide, and (vi) carbon dioxide or other fumes commonly found in the engine rooms of a Navy vessel.  

A fully articulated medical rationale for any opinions expressed should be set forth in the examination report.  The examiner should address the particulars of this Veteran's medical and employment history and the relevant medical science as applicable.  If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained.  In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the appropriate examiner for completion of the opinion).  

Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  

3.  After the requested development has been completed, the AMC should readjudicate the claim.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.  

Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified.  The Veteran 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).  



______________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs