Citation Nr: 1326799 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-29 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of a right ganglion cyst of the right wrist, to include a scar. 2. Entitlement to service connection for arthritis of the lower extremities. 3. Entitlement to service connection for arthritis of the upper extremities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from January 1967 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of these matters is with the RO in Montgomery, Alabama. In April 2012, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. The issue of service connection for residuals of a right ganglion cyst of the right wrist, to include a scar, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT During the April 2012 Board hearing, the Veteran submitted a written request to withdraw his appeal of the claims for service connection for arthritis of the lower extremities and for arthritis of the upper extremities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for arthritis of the lower extremities have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for arthritis of the upper extremities have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). In this case, a February 2009 rating decision denied service connection for arthritis of the lower extremities and for arthritis of the upper extremities. The Veteran filed a notice of disagreement with that rating decision in April 2009, and perfected an appeal in August 2009. In written correspondence received during the Veteran's April 2012 Board hearing, the Veteran requested to withdraw his appeal as to the issues of entitlement to service connection for arthritis of the lower extremities and for arthritis of the upper extremities. 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). 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) (2012). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204(c) (2012). As the Veteran has withdrawn his appeal as to the issues of entitlement to service connection for arthritis of the lower extremities and for arthritis of the upper extremities, there remain no allegation of errors of fact or law for appellate consideration concerning these issues. The Board, therefore, has no jurisdiction to review the Veteran's claim of entitlement to service connection for arthritis of the lower extremities and for arthritis of the upper extremities, and these issues are dismissed. ORDER The claim for service connection for arthritis of the lower extremities is dismissed. The claim for service connection for arthritis of the upper extremities is dismissed. REMAND The Veteran contends that he has a current right wrist disability due an injury to his right wrist in service from lifting and moving a heavy toolbox or in the alternative, as a residual of ganglion cyst surgical removals during service. The Veteran asserts that he has continued to have pain in his right wrist since service. Service treatment records show that in March and November 1968, the Veteran had a small ganglion cyst on his right wrist that was giving him pain and causing weakness. He underwent surgical removal of the cyst in December 1968. In April 1969, the Veteran was seen with pain over the right wrist, especially the radial head. X-rays were negative. In February 1970, the Veteran was seen for pain in the right wrist upon lifting. It was noted that he did not remember injuring the wrist. In June 1970, the Veteran was found to have right wrist pain of unknown etiology. The Veteran's October 1970 separation medical examination report reflects that he had a 1 inch surgical scar, post-ganglionectomy, right wrist. In December 1970, the Veteran underwent a ganglionectomy for a recurrent ganglion of the right wrist. In a July 2008 private medical record from Dr. S. Fallahi, it was noted that the Veteran was diagnosed with rheumatoid arthritis in 1999 by Dr. Saway in Birmingham. Physical examination revealed synovitis in the wrists with very limited motion of the wrists. He was diagnosed with active rheumatoid arthritis. A December 2008 VA joints examination report reflects that the Veteran reported an injury to his right wrist in service as a result of lifting a 100 pound tool box. The Veteran underwent a physical examination to include having X-rays of his right wrist. The diagnosis was mild osteoarthritis at the base of the thumb and mild osteoarthritic changes of the "MPS" of the thumb. In addition, the proximal interphalangeal joint and distal interphalangeal joint showed osteoarthritic changes and he had a positive rheumatoid arthritis factor. The VA examiner opined that the removal of the ganglion cyst while in service is less likely as not related to arthritis. She provided a definition explanation of a ganglion cysts and arthritis. Her rationale was that a ganglion cyst and arthritis are separate entities and that there is no cause and effect. In April 2012, the Veteran submitted an undated letter from D. Mays, PA, at Senior Care noting that he had been the Veteran's family physician since early 1997. He noted that he reviewed the Veteran's military medical records and determined that the Veteran had an old injury to his right wrist that necessitated two surgeries during active duty. He noted that the Veteran has a diagnosis of rheumatoid arthritis. He also noted that although the Veteran had not specifically made a medical complaint to him about his wrist, it had been noted on several occasions that he had ongoing pain in this joint. In his medical opinion, the pain the Veteran experiences is due to the injury and surgeries while he was on active duty. Furthermore, during the April 2012 Board hearing, the Veteran testified that his original injury to his right wrist was a result of carrying his toolbox while a mechanic in the Air Force. They were in a spot where he couldn't roll it. He had to carry the toolbox and his "wrist just gave out." See hearing transcript, page 9. He believed that was what caused the ganglion cyst. Lay statements are competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002) (ringing in the ears is capable of lay observation). Thus, in light of the above evidence, to include the conflicting medical opinions of record, the Board thus finds that another VA medical examination and opinion is warranted to determine the etiology of any diagnosed right wrist disability. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Lastly, a Social Security Administration (SSA) decision associated with the record shows that the Veteran was awarded SSA disability benefits due, in part, to rheumatoid arthritis. However, the medical records underlying this decision are not associated with the claims file. The records may be of significant probative value in determining whether service connection for the disability at issue may be granted. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, on remand, all outstanding SSA records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide sufficient information, and if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Specifically, the Veteran should be requested to identify and provide authorization to obtain medical records from Dr. Saway in Birmingham, Alabama, as referenced by Dr. Fallahi in a July 2008 medical record (noted above). If, in the alternative, the Veteran wants to obtain and submit those records, he may do so. 2. Obtain all outstanding SSA records, to include underlying medical records for the decision awarding the Veteran SSA disability benefits. All attempts to secure these records and response received must be documented. If no record is available, that fact should be documented. 3. After completing the above, schedule the Veteran for a VA examination, by a VA examiner with the appropriate expertise, to determine the nature and etiology of any right wrist disability, to include any residual scars from in-service ganglion surgery. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner is requested to clearly state each diagnosis pertaining to the right wrist, to include any scars. For each diagnosed disability, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that each diagnosed right wrist disability began in or is related to active service. The examiner is requested to provide a complete explanation for all opinions, to include a discussion of the medical opinions already of record (i.e. the December 2008 VA opinion and the opinion of D. Mays, PA, received in April 2012). In addition, the examiner must consider the Veteran's statements regarding the incurrence of his right wrist disorder in-service, in addition to his statements regarding continuity of symptomatology after discharge. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 4. Ensure that all requested actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the case to the Board. The appellant 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs