Citation Nr: 1326228	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  09-50 665	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a right knee disorder.

2.  Entitlement to service connection myofascial pain syndrome, initially claimed as temporomandibular joint (TMJ) syndrome.

3.  Entitlement to an initial rating higher than 10 percent for a low back sprain.

4.  Entitlement to an initial compensable rating for left leg varicosities with residual scarring.  

5.  Entitlement to an initial compensable rating for a low back scar, the residual of a cyst removal.



REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The Veteran served on active duty from January 2001 and April 2007.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2012, in support of his claims, he testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing).

At the outset of the hearing, the Veteran withdrew one of his several claims, so the Board is dismissing that claim.  The remaining other claims require further development before being decided on appeal, so the Board instead is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC.



FINDING OF FACT

At the outset of his October 30, 2012 Travel Board hearing, so prior to the promulgation of a decision in this appeal, the Veteran withdrew his claim for an initial compensable rating for his left leg varicosities with residual scarring.


CONCLUSION OF LAW

The criteria are met for withdrawal of the appeal of this claim.  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 that 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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, the Veteran has withdrawn his appeal for an initial compensable rating for his left leg varicosities with residual scarring.  Hence, there remain no allegations of errors of fact or law for appellate consideration as concerning this claim.  Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed.


ORDER

The claim of entitlement to an initial compensable rating for left leg varicosities with residual scarring is dismissed.


REMAND

All of the Veteran's remaining claims, which are still on appeal, require further development.

During his October 2012 hearing before the undersigned Veterans Law Judge of the Board, the Veteran testified that there was outstanding medical evidence that could support his claim.  In particular, he cited relevant records at the VA Community Based Outpatient Clinic in San Bruno, California, and at the Dental Clinic at the VA Medical Center (VAMC) in San Francisco, California.  These additional records therefore need to be obtained before deciding his appeal.  38 C.F.R. § 3.159(c)(2) (2012).  See also See Dunn v. West, 11 Vet. App. 462, 
466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA-generated records are in constructive, if not actual, possession of the agency and therefore, if potentially relevant, must be obtained and considered).

He also was last examined by VA for compensation purposes in June 2010 to determine the extent of impairment attributable to his service-connected low back sprain and low back scar, the latter of which is a residual of a cyst removal.  So he needs to be reexamined to reassess the severity of these disabilities, particularly since he alleges they are now considerably worse and it has been more than 3 years since that last examination.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); and Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).


Accordingly, his remaining claims are REMANDED for the following additional development and consideration:

1.  Notify the Veteran of VA's duties to notify and assist him in the development of his claims of entitlement to increased ratings for his service-connected low back sprain and his service-connected low back scar, the residual of a cyst removal.  38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. § 3.159 (2012). 

2.  Also request that he provide the name(s) and address(es) of all health care providers (VA and non-VA) who have treated him since service for a right knee disorder, myofascial pain syndrome, a low back sprain, and/or a low back scar, the residual of a cyst removal.  Also request that he provide the dates of the treatment.

Obtain all identified records.  This includes, but is not limited to, records concerning his purported evaluation and treatment at the VA Community Based Outpatient Clinic (CBOC) in San Bruno, California, as well as in the Dental Clinic at the VAMC in San Francisco, California.  Regarding these particular records, since they are in the custody of a Federal department or agency, namely VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2).  So make as many attempts to obtain these records, assuming they exist, as are required to comply with this VA regulation.  Also appropriately notify the Veteran if unable to obtain these identified records.  38 C.F.R. § 3.159(e)(1).

If, per chance, he also identifies outstanding private records, then the attempts to obtain them instead are governed by 38 C.F.R. § 3.159(c)(1).

3.  Upon receipt of all additional records and other pertinent evidence, schedule the Veteran for an examination of his spine to determine the extent of impairment attributable to his service-connected low back sprain and low back scar, the residual of a cyst removal.  All indicated tests and studies must be performed, and any indicated consultations must be scheduled.  

The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand.  

The examiner must report on the following:

a) The Veteran's range of lumbar spine motion or, if ankylosis is present, whether it is favorable or unfavorable; 

(Note:  for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.)

b) Whether there is associated muscle spasm, guarding, or localized tenderness which does or does not result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis; 

c) Whether there is a vertebral body fracture with loss of 50 percent or more of the height;

d) Whether there are any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment;

e) Whether, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion;

f) The total duration of incapacitating episodes over the past 12 months, e.g. a total duration of at least two weeks but less than four weeks; a total duration of at least four weeks but less than six weeks; a total duration of at least six weeks;

(Note:  an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.) 

g) Whether there is a lack of normal endurance and functional loss due to pain and pain on use, including that experienced during flare ups; 

h) Whether there is weakened movement, premature or excess fatigability, and/or incoordination; 

i) The effects of the service-connected lumbar strain on the Veteran's ordinary activity, including his employment and activities of daily living.  

With respect to the low back scar, the residual of a cyst removal, the examiner must report the following:  

a) The dimensions of the scar in inches or centimeters;

b) Whether the scar is deep or superficial;

(Note:  a deep scar is one associated with underlying soft tissue damage.  A superficial scar is one not associated with underlying soft tissue damage.)  

c) If the scar is superficial, whether it is unstable and/or painful on examination;

(Note:  an unstable scar is one where, for any reason, there is a frequent loss of a covering of the skin over the scar.)

d) Whether the scar limits the range of motion of any affected part or is disabling in any way not noted above.  The range of motion of the affected part must be set forth in degrees.  

*The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of the claims.  The consequences for failure to report for a scheduled VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655 (2012). 

In the event he does not report for a scheduled VA examination, a copy of the notice informing him of the date, time, and location of the examination must be associated with the claims folder.  If the notice was returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder.  

4.  Then readjudicate the claims of entitlement to service connection for a right knee disorder and myofascial pain syndrome and for increased ratings for the low back sprain and low back scar, the residual of a cyst removal, in light of this and all other additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.


By this remand, the Board intimates no opinion as to the final disposition of these remaining claims.

The Veteran need take no action unless he is notified to do so.  However, he is advised that he has the right to submit additional evidence and/or argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). 

These 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.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs