Citation Nr: 1320015	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  08-32 616	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to increase in the ratings for postoperative hemorrhoids, currently assigned "staged" ratings of 10 percent prior to March 17, 2009, and 30 percent from that date.

2.  Entitlement to service connection for tuberculosis exposure.

3.  Entitlement to service connection for epididymitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from November 1975 to March 1984.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Washington, D.C. RO.  The Veteran's claims file is now in the jurisdiction of the Roanoke, Virginia RO.  An April 2009 rating decision granted a 30 percent rating for hemorrhoids with anal fissure effective March 17, 2009.  A November 2011 rating decision denied service connection for epididymitis.  In April 2013, a hearing was held before the undersigned in Washington, D.C.; a transcript of the hearing is included in the record.  At the hearing the Veteran submitted additional evidence with a waiver of RO initial consideration.

The December 2007 rating decision also denied other claims; the Veteran initiated an appeal of several of the other denials, and an August 2008 statement of the case (SOC) addressed those matters.  An October 2008 VA Form 9 limited the appeal to the issues regarding tuberculosis exposure and the rating for hemorrhoids.

The issues of entitlement to an increased rating for post-sphincterotomy hemorrhoids with anal fissure and service connection for epididymitis are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if action on his part is required.


FINDING OF FACT

In April 2013, prior to the promulgation of a decision in the matter, the Board received notification from the Veteran that he was withdrawing his appeal in the matter of service connection for tuberculosis exposure; there are no questions of fact or law in this matter remaining for the Board to consider.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran are met with respect to the claim of service connection for tuberculosis exposure; the Board has no further jurisdiction in the matter.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7104, the Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA.  See 38 C.F.R. § 20.101.  Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Under 38 U.S.C.A. § 7105(a), an appeal to the Board is initiated by a notice of disagreement and completed by a substantive appeal after a SOC is furnished to the Veteran.  See 38 C.F.R. § 20.200.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by an authorized representative.  38 C.F.R. § 20.204(a)(b).  

In October 2008, the Veteran filed a substantive appeal perfecting his appeal in the matters of the rating for hemorrhoids with anal fissure and service connection for tuberculosis exposure.  In April 2013, the Veteran submitted a statement indicating, "I also wish to withdraw the issue of service connection for tuberculosis exposure."  As the Veteran has withdrawn his appeal in such matter, there remain no allegations of error of fact or law for appellate consideration in the matter of service connection for tuberculosis exposure.  Accordingly, the Board has no further jurisdiction in this matter, and the appeal in the matter must be dismissed.
ORDER

The appeal seeking service connection for tuberculosis exposure is dismissed.


REMAND

While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims.  See 38 C.F.R. § 3.159 (2012).

A November 2011 rating decision denied the Veteran's claim seeking service connection for epididymitis.  In December 2011 he filed a notice of disagreement with that decision.  The filing of a timely notice of disagreement initiates the appeal process.  Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).  As a SOC has not yet been issued in the matter, a remand for such action is required.  Manlincon v. West, 12 Vet. App. 238 (1999).  [The Board notes that at the April 2013 hearing before the undersigned the Veteran testified that he has sought ongoing treatment for epididymitis at the Baltimore VA Medical Center and has upcoming surgery scheduled for treatment of this condition.  The RO should obtain updated treatment records before issuing an SOC.]

Regarding the rating for hemorrhoids, the Veteran testified at the April 2013 hearing that he receives treatment for this disability at the Washington VA Medical Center.  He submitted copies of some recent (March 2013) treatment records.  A review of the claims file (and Virtual VA) found that the most recent complete VA treatment records in evidence are from December 2008, suggesting there are more than four years of records outstanding.  Updated records of all VA treatment the Veteran received for the hemorrhoids are pertinent evidence, are constructively of record, and must be secured.

Additionally, the Board notes that the Veteran's most recent VA examination for this disability was in March 2009, over four years ago.  While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  The Veteran has alleged in statements and testimony that the current rating does not reflect the current state of his disability.  The Veteran's statements advance an implicit claim that the hemorrhoids/anal fissure disability has worsened.  Because the Veteran is competent to observe a worsening of symptoms, a contemporaneous examination to assess the current severity of the disability is necessary.

Accordingly, the case is REMANDED for the following action:

1.  The RO should secure and review updated VA treatment records in the matter and then issue a SOC addressing the issue of service connection for epididymitis.  The Veteran should be advised that this matter will only reach appellate status if he timely perfects an appeal by submitting a substantive appeal.  If he does so, the matter should be returned to the Board for appellate consideration.

2.  The RO should secure for the record copies of the complete updated (since December 2008) clinical records of any treatment the Veteran has received for hemorrhoids.

3.  The RO should then arrange for the Veteran to be scheduled for a proctology examination to ascertain the current severity of his hemorrhoids with anal fissure status post lateral anal sphincterotomy.  The Veteran's claims file (including this remand) must be reviewed by the examiner in connection with the examination, and the examiner must also be provided a copy of the criteria for rating hemorrhoids and sphincter pathology.  Findings reported must include notation of the presence or absence of each symptom noted in the criteria for ratings above 30 percent.  The examiner should also comment on the expected impact of the symptoms found on the Veteran's employment and activities of daily living, and must explain the rationale for all opinions offered.

4.  The RO should then readjudicate the matter on appeal.  If it remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the 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 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).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs