Citation Nr: 1328130 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-43 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome, right hand. 2. Entitlement to service connection for herpes simplex keratitis affecting the eye. 3. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 2000 to July 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to service connection for herpes simplex keratitis and carpal tunnel syndrome of the right hand; and, granted service connection with an initial 10 percent rating assigned for chondromalacia, status post arthroscopy, right knee, (right knee disability) effective from July 5, 2007. The Veteran disagreed with the denial of service connection for carpal tunnel syndrome of the right hand and herpes simplex keratitis, as well as the initial 10 percent rating assigned for the service-connected right knee disability. This appeal ensued. Jurisdiction of the claims file was subsequently transferred to the RO in Montgomery, Alabama. Before the case was certified to the Board on appeal, the RO issued a rating decision in March 2013 granting service connection for "herpetic dermatitis of the eyelid" (previously denied as herpes simplex keratitis). A noncompensable disability rating was assigned, effective from July 5, 2007. In June 2013, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. At the hearing, the Veteran explained that the service-connected herpetic dermatitis of the eyelid is a different condition than the herpes simplex keratitis; and it was therefore agreed that the issue of entitlement to service connection for herpes simplex keratitis, which was the issue certified on appeal, remains pending, despite the grant of service connection for herpetic dermatitis of the eyelid. Also at the hearing, the Veteran requested to withdraw from appellate status the issue of entitlement to service connection for carpal tunnel syndrome, right hand. The issues of entitlement to service connection for herpes simplex keratitis and entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee disability 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. FINDING OF FACT At his June 2013 Video Conference hearing, and prior to the promulgation of a decision in the appeal, the Veteran submitted a handwritten statement and provided oral testimony indicating his request to withdraw from appellate status the issue of entitlement to service connection for carpal tunnel syndrome of the right hand. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran, with regard to the issue of entitlement to service connection for carpal tunnel syndrome of the right hand, 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 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). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2012). The Veteran has withdrawn his appeal as to the issue of entitlement to service connection for carpal tunnel syndrome, right hand prior to the promulgation of a Board decision. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for carpal tunnel syndrome, right hand, and it is therefore dismissed. ORDER The claim of service connection for carpal tunnel syndrome, right hand, is dismissed. REMAND The Veteran seeks service connection for herpes simplex keratitis. As noted in the Introduction Section above, service connection for "herpetic dermatitis of the eye lid" was granted pursuant to a March 2013 rating decision. At the video conference in June 2013, the Veteran explained, in essence, that the service-connected "herpetic dermatitis of the eyelid" did not include or encompass the symptomatology associated with the issue certified on appeal of herpes simplex keratitis. At his hearing, the Veteran's representative stated, "... the issue of keratitis is more so affecting the cornea and not the skin around the eyes." Hearing Transcript, p. 7. The Veteran specifically identified symptoms affecting the inside of the eye, separate from the symptoms affecting the skin condition of the eyelid (herpetic dermatitis). More specifically, the Veteran reported eye pain, itchiness, itchiness of the eye and a feeling that something coarse was in the eye when he had flare-ups of the herpes simplex keratitis. Thus, in sum, the Veteran reported symptoms within the eye that occur on occasion with outbreaks that last about 3 days. He takes an anti-viral medication when he feels an outbreak coming on. The claim was previously denied because a VA doctor could not determine whether the Veteran actually had a diagnosis of herpes simplex keratosis. The doctor suggested that the Veteran should be examined by an ophthalmologist during an outbreak to determine the exact diagnosis. Thus, a VA examination is necessary to determine whether the Veteran has a diagnosis of herpes simplex keratitis, in addition to the service-connected herpetic dermatitis; and, if so, identify the symptoms attributable to that diagnosis. While the scheduling of an examination commensurate with an outbreak may not be possible, the Veteran is certainly competent and credible to describe his symptoms during an outbreak, and is urged to seek treatment during an outbreak in order to obtain objective evidence of current disability. With regard to the Veteran's service-connected right knee disability, the Veteran asserts that the initial 10 percent disability rating assigned does not accurately represent the severity of the condition. The Veteran's testimony before the undersigned in June 2013 describes a different overall disability picture than what was described at a VA examination in October 2012. For example, the October 2012 examiner indicated that the Veteran did not use any assistive devices for his knee, but the Veteran testified that he did, in fact, use a knee brace. This fact has also been noted in the VA outpatient treatment records. Additionally, the October 2012 VA examination also refers to a meniscal injury, but indicated that the Veteran did not have instability or subluxation. This is in contrast to the Veteran's hearing testimony where the Veteran specifically reported that his right knee gives way a lot. Likewise, the Veteran's October 2012 examination indicates that the Veteran did not experience flare ups of knee pain; yet, the Veteran specifically testified that he has constant pain at a level of 3, but he experiences periods when the pain is much worse, such as in cold weather and while climbing stairs. Given the differences between the examination findings from October 2012, and the Veteran's reported history, another VA examination must be conducted in order to reconcile the differences between the Veteran's testimony and the findings on examination in October 2012. Moreover, the Veteran testified at his hearing that he was scheduled for an MRI to assess the current status of the right knee. No such MRI has been associated with the claims file, and such a report could have a significant impact on his claim. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA records pertaining to the Veteran not currently of record, including, but not limited to, any recent MRI report of the right knee and any treatment records showing an outbreak of herpes simplex keratitis. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file all pertinent private treatment records identified by the Veteran that have not already been obtained. 3. Schedule the Veteran for an eye examination by an ophthalmologist who can determine whether the Veteran has any disabilities affecting the eye other than the service-connected herpetic dermatitis, including, but not limited to herpes simplex keratitis. The claims file must be reviewed by the examiner in conjunction with the examination and the examination report should indicate that the claims folder was reviewed. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner is specifically directed to the Veteran's June 2013 hearing testimony, tabbed in volume 2 of the paper claims file, which describes the Veteran's symptomatology regarding the inside of the eye, and how he feels that this is a different disability than the service-connected herpetic dermatitis of the eye lid. At the very least, the examiner should distinguish what symptoms pertain to inside the eye, even if those symptoms are attributable to the service-connected disability for purposes of determining whether all of the Veteran's eye symptoms are adequately considered by the rating schedule. The examiner is asked to opine as to the following: a. whether it is at least as likely as not (a probability of 50 percent or greater) that any current eye disorder, including, but not limited to, herpes simplex keratitis began in service, or is otherwise related to service. b. whether it is at least as likely as not (a probability of 50 percent or greater) that any current eye disorder, including, but not limited to, herpes simplex keratitis is caused by, or is aggravated by, the service-connected herpetic dermatitis of the eyelid. The examiner must provide a complete rationale for any stated opinion. In responding to this question, the examiner should consider the Veteran's comments regarding experiencing symptoms inside the eye, as opposed to the skin condition of the eye lid. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Schedule the Veteran for a VA examination with an orthopaedic physician to determine the current nature and severity of the right knee disability. All indicated tests, including X-ray, magnetic resonance imaging (MRI) if indicated, and range of motion studies, must be conducted. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should specifically indicate the current nature of the knee disability, including whether there is arthritis, in addition to a meniscal tear; whether the Veteran has had surgical intervention to repair a torn meniscus or other ligament or tendon, and how that would affect the current rating. In particular, the examiner should indicate if the Veteran has instability or subluxation of the right knee, particularly in light of his June 2013 hearing testimony that reported giving way of the knee a lot. See tabbed hearing testimony in volume 2 of the paper claims file. The examiner should provide an opinion as to the extent that pain limits the functional ability of the right knee in terms of additional functional limitation due to pain. The examiner should describe the extent the right knee disability exhibits weakened movement, excess fatigability, incoordination, and/or ankylosis. These determinations should be expressed in terms of the degree of additional range of motion loss. The examiner must address the Veteran's reports of flare-ups and instability, as noted in the video conference hearing testimony. A complete rationale for all opinions proffered must be included in the report provided. 5. The Veteran must be given adequate notice of the date(s) and place(s) of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. Ensure that all examinations are adequate, and if not, return the examination for clarification. 6. After completing any additional necessary development, readjudicate the issues remaining on appeal. If the disposition of any of the claims remains unfavorable, furnish the Veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. 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 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs