Citation Nr: 1333199 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-34 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected type II diabetes mellitus. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1968 to March 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2009 and February 2010 rating decisions of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The issues of service connection for erectile dysfunction and entitlement to a TDIU rating are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT At a November 2012 hearing, prior to the promulgation of a decision in the appeal in the matter, the Veteran indicated (and submitted a written statement to the effect) that he wished to withdraw his appeal seeking to reopen a claim of service connection for a left knee disability. CONCLUSION OF LAW The criteria for withdrawal of an appeal are met as to the matter of whether new and material evidence has been received to reopen a claim of service connection for a left knee disability; the Board has no further jurisdiction in the matter. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has jurisdiction in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. 38 U.S.C.A. § 7104. 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(b)(5) (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. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. At the November 2012 Travel Board hearing, the Veteran testified (and submitted a written statement to the effect) that he wished to withdraw his appeal seeking to reopen a claim of service connection for a left knee disability. There remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal in the matter must be dismissed. ORDER The appeal to reopen a claim of service connection for a left knee disability is dismissed. REMAND On review of the record the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA. The record reflects that the Veteran receives Social Security Administration (SSA) benefits due to osteoarthrosis and allied disorders as well as disorders of the back (discogenic and degenerative). While SSA records are associated with the record, the decision awarding such benefits is not. A request to SSA for a complete set of records pertaining to the Veteran, including any decision and the medical evidence considered in making the decision is necessary. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record also reflects that the Veteran receives Workers' Compensation benefits based on a July 2008 accident at work involving his right shoulder. Records pertaining to the award of Workers' Compensation are pertinent evidence that is outstanding, and must be secured. Erectile Dysfunction The Veteran contends that his erectile dysfunction has been caused or aggravated by his service-connected type II diabetes mellitus. On March 2007 VA diabetes mellitus examination, he reported having complete erectile dysfunction for two years. The examiner opined that the Veteran's erectile dysfunction was unrelated to his type II diabetes mellitus because the erectile dysfunction antedated the onset of the diabetes mellitus. In a July 2009 statement, a private physician noted that the Veteran had a history of erectile dysfunction secondary to diagnoses of hypertension and diabetes mellitus. No rationale was provided for this opinion. On August 2009 VA diabetes mellitus examination, the Veteran complained of complete erectile dysfunction that had its onset approximately four years prior. The examiner opined that the Veteran's erectile dysfunction was not due to type II diabetes mellitus because it had its onset approximately one year prior to the diagnosis of his type II diabetes mellitus. In an August 2009 statement, the Veteran's wife stated that they had found out that the Veteran's erectile dysfunction was caused by his type II diabetes mellitus; however, she did not reveal where or how they had obtained such information. At the November 2012 Travel Board hearing, the Veteran testified that at his VA examination, he had made a mistake when stating the date when his erectile dysfunction began. However, he did not elaborate on the nature of this mistake. In addition, the medical evidence of record does not adequately address whether or not the Veteran's erectile dysfunction was aggravated by his type II diabetes mellitus; as that is a medical question, a medical opinion addressing the matter must be secured on remand. TDIU On a VA Form 21-8940 submitted in February 2010, the Veteran alleged that his service-connected type II diabetes mellitus, and diabetic neuropathy of the hands and feet prevent him from maintaining any substantially gainful occupation. He reported that he had last worked in July 2009 as a building engineer for a school district. On a VA Form 21-4192 submitted in April 2010 and May 2010, the school district informed VA that the Veteran was currently on long-term Workers' Compensation (i.e., not working due to a work-.related injury). The Veteran is advised that a governing regulation provides that when evidence (to include identifying information and releases) requested in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). Accordingly, the case is REMANDED for the following: 1. The RO should secure from SSA complete copies of all records pertaining to the Veteran's claim for SSA disability benefits, including the decision awarding him such benefits and all medical evidence considered. If such is provided by disc, the RO should print out the records and associate the copies with the record. Any negative search result is to be noted in the record and communicated to the Veteran. 2. The RO should contact the appropriate state Workers' Compensation agency and request copies of all records pertaining to the Veteran. He must provide any authorization needed for such development. If he does not do so, the claim must be further processed under 38 C.F.R. § 3.158(a). 3. After the development sought above is completed, the RO should arrange for a genitourinary examination of the Veteran to ascertain the nature and likely etiology of any current erectile dysfunction. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Based on review of the record and examination of the Veteran, the examiner should be asked to identify the most likely etiology of the Veteran's erectile dysfunction. Specifically, is it at least as likely as not (a 50% or better probability) that such was caused or aggravated [the opinion must address the concept of aggravation] by his service-connected type II diabetes mellitus. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 4. Thereafter, the RO should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claims on appeal (TDIU after any further development indicated). If either benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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