Citation Nr: 1332524 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-06 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral wrist disabilities. 2. Entitlement to service connection for a right elbow disability. 3. Entitlement to service connection for a left elbow disability. 4. Entitlement to service connection for a head injury, claimed as a traumatic brain injury. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from January 2000 to May 2000, from August 2003 to April 2004, and from October 2005 to July 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. A November 2008 rating decision denied service connection for a bilateral wrist disability. A February 2009 rating decision denied service connection for bilateral hearing loss, a bilateral wrist disability, a head injury, a stomach disability, and a post foot rash. In March 2009, the Veteran submitted a notice of disagreement with both rating decisions and all the issues denied. In a February 2009 substantive appeal, the Veteran perfected an appeal of all of those issues. In January 2012, the Veteran and his representative attended an informal conference with RO personnel and an informal conference report is associated with the claims file. An April 2012 rating decision granted service connection and assigned 0 percent ratings for irritable bowel syndrome, claimed as a stomach condition, and dyshydrotic dermatitis, claimed as a foot rash or skin condition, effective November 24, 2008. As that is a full grant of the benefit sought for those two claims, the issues of service connection are no longer on appeal. In June 2012, the Veteran submitted a notice of disagreement with the initial 0 percent rating assigned for irritable bowel syndrome. An October 2012 rating decision granted a higher 30 percent disability rating, for irritable bowel syndrome, effective November 24, 2008. A September 2012 rating decision denied service connection for right and left elbow disabilities, claimed as secondary to bilateral wrist disabilities. In November 2012, the Veteran submitted a written notice of disagreement with the denial of service connection for a right elbow disability and perfected his appeal of that issue in a VA Form 9 received in April 2013. In June 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The issues of entitlement to service connection for bilateral wrist disabilities, a right elbow disability, and a left elbow disability, and entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT In January 2012, prior to the promulgation of a decision in the appeal, the Veteran's representative, on the Veteran's behalf, withdrew the appeal of the claims for service connection for a head injury and bilateral hearing loss. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal of the issues of entitlement to service connection for a head injury, claimed as a traumatic brain injury, and for bilateral hearing loss 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 a January 2012 written statement, the Veteran's representative, on his behalf, stated that the Veteran requested to withdraw the issues of hearing loss and head injury that were on appeal. As the Veteran, through his representative, has withdrawn the appeal as to the issues of entitlement to service connection for a head injury, claimed as a traumatic brain injury, and for bilateral hearing loss, there remain no allegation of errors of fact or law for appellate consideration concerning those issues. The Board, therefore, has no jurisdiction to review the Veteran's claims of entitlement to service connection for s head injury or for bilateral hearing loss and must dismiss those issues. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d), 3.309(e) (2012). ORDER The appeal concerning the issue of entitlement to service connection for a head injury, claimed as a traumatic brain injury, is dismissed. The appeal concerning the issue of entitlement to service connection for bilateral hearing loss is dismissed. REMAND The Veteran contends that he has bilateral wrist disabilities and a right elbow disability related to service. Specifically, he asserts that during service he was on an armored support vehicle, and it had been raining all that day. He had all of his combat equipment on and he slipped off the vehicle and landed on his wrists. The Veteran, who has indicated he is a chiropractor, testified that he knew that he sustained some sort of ligamentous or tendonitis condition from this fall. Service treatment records show that on "Feb 19" the Veteran was seen by physical/occupational therapy for complaints of a left wrist sprain from one month ago. He now had weakness and ligament laxity. In a June 2007 report of medical assessment, the Veteran noted a possible broken scaphoid bone in the hand, x-rays were negative. A June 2007 post-deployment health assessment report shows that the Veteran was in Southwest Asia. He reported having swollen, stiff, or painful joints and muscle aches during deployment and currently. A December 2008 VA joints examination report shows that the Veteran stated he sustained a fall in December 2006 catching himself with his hands causing his wrists to bend back. The Veteran reported pain in both wrists at the time of the injury. He sought medical attention as he felt there may have been a sprain. X-rays were done, which did not show any fractures. He was diagnosed with wrist sprain. It was noted that the Veteran currently did not report any symptoms with the wrists, he denied swelling, weakness, limitation of motion, and pain. Current x-rays revealed negative findings. The diagnosis was status post bilateral wrist sprain. The VA examiner noted that there was documentation of left wrist sprain in the service records. However, at the time of the examination, there were no subjective or objective findings indicating any ongoing wrist condition. In a February 2009 buddy statement, a fellow service member who indicated that he was with the Veteran when he slipped off a vehicle and landed on both wrists with all of the weight of his "IBA" and ammunition on his back. He stated that for the next couple of weeks the Veteran had trouble holding on to things and even stated that he thought he had broken his wrist. An April 2011 VA medical record shows that the Veteran stated he had been bothered by chronic tendinitis complaints manifested by discomfort and stiffness localized to both wrists. The Veteran stated that started in service. A July 2011 VA rheumatology record shows that the Veteran was referred for complaints of persistent problems with tendonitis/arthritis symptoms involving both the wrists, forearms, and elbows. The Veteran noted discomfort and stiffness intermittently. He reported that while in service, he fell off of a vehicle, landing on two outstretched arms. X-rays were taken of his hands, wrists, and forearms, and no fractures were noted. He was assessed with inflamed extensor tendons of the forearms; bilateral lateral epicondylitis, right greater than left; and wrist pain on the bilateral dorsal aspect. In an October 2012 statement, the Veteran's representative set forth that the Veteran, who is a chiropractor, contends that in order for a soft-tissue injury be identified, an MRI of the wrists is necessary. The Veteran has submitted a February 2013 private occupational therapy evaluation form noting that the Veteran complained of pain in the joint involving the forearm. The Veteran reported that several years earlier he was getting off an infantry vehicle carrying 50 pounds of gear on his back and slipped and fell catching himself on both wrists. The Veteran stated x-rays indicated no fracture and that he kept them taped for six to eight weeks. He reported having discomfort since that time with wrist pain that radiated up the arms. Intervention comments noted that assessments performed on the Veteran demonstrated symptoms of generalized tendonitis and nerve compression of the bilateral upper extremities with the greatest discomfort at the dorsal wrists, forearms, and lateral epicondyles. No etiological opinion was provided. The Board finds that any relationship between the Veteran's bilateral wrist symptoms and right elbow symptoms and his service remains unclear. Therefore, the Board finds that a VA examination is necessary in order to fairly decide these claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has received a February 2013 initial evaluation from Peak Performance Outpatient Rehabilitation that indicates that the Veteran was to undergo therapy two times a week. However, there are no subsequent records from Peak Performance Outpatient Rehabilitation associated with the claims file. While on remand, the Veteran should be requested to submit authorization for VA to obtain these outstanding records. Also while on remand, any outstanding VA treatment records should be obtained. The claims file includes VA treatment records dated from November 2010 to July 2011. With regard to the claim for service connection for a left elbow disability, the Veteran submitted a VA Form 9 in April 2013 noting that he disagreed with the September 2012 rating decision that denied service connection for a left elbow disability. The Veteran's April 2013 statement is a timely notice of disagreement with that rating decision as to the denial of service connection for a left elbow disability. However, it does not appear that the RO has issued a statement of the case addressing that issue. Therefore, the appropriate Board action is to remand that issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). In addition, an April 2012 rating decision granted service connection and assigned a 0 percent rating for irritable bowel syndrome (IBS), effective November 24, 2008. In June 2012, the Veteran submitted a notice of disagreement with the initial 0 percent rating. An October 2012 rating decision granted a 30 percent rating, for IBS pursuant to Diagnostic Code 7319, effective November 24, 2008. Although a 30 percent rating is the maximum allowed under Diagnostic Code 7319 for irritable colon syndrome, alternate diagnostic codes under the schedule for rating digestive disabilities provide for higher ratings and there exists the potential for an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). As the Veteran has not expressed satisfaction with the initial 30 percent rating assigned, the claim remains on appeal. Therefore, the appropriate Board action is to remand the issue of a higher initial rating for IBS for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case which addresses the issue of entitlement to service connection for a left elbow disability and entitlement to an initial rating in excess of 30 percent for IBS. Inform the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires appellate review. 2. Request that the Veteran provide sufficient information, and authorization, to enable VA to obtain any additional evidence, not already of record, which pertains to the claims on appeal. Request the Veteran to provide authorization to obtain all outstanding private medical records, to specifically include Peak Performance Outpatient Rehabilitation, dated from February 2013 to the present. All records obtained should be added to the claims folder. If requests for any private treatment records are unsuccessful, inform the Veteran of that to ensure he is provided an opportunity to obtain and submit the records. 3. Contact the appropriate VA medical facilities and obtain all outstanding medical records dated from July 2007 to November 2010 and from July 2011 to the present. Associate all records with the claims file. 4. Then, schedule the Veteran for a VA examination, by an examiner with the appropriate expertise, to determine the nature and etiology of any current bilateral wrist disability and right elbow disability. The claims folders must be reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. Specifically, an MRI and neurological testing should be conducted, and all findings should be reported in detail. All opinions expressed must be accompanied by a complete rationale. After providing the Veteran with an MRI to address his contentions of a soft tissue injury, the examiner should identify any pertinent pathology found and should diagnose any current bilateral wrist or right elbow disability. The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any bilateral wrist disability or right elbow disability diagnosed had its onset in service, was aggravated by service, or is otherwise related to any incident of service, to include the events described by the Veteran in service. The examiner must consider any statement from the Veteran regarding the injury in service and continuity of symptomatology and the February 2009 buddy statement in support of his claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 5. Then, readjudicate the claims. If any action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs