Citation Nr: 1336240 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-04 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for benign prostatic hypertrophy (claimed as prostate disorder). 2. Entitlement to a compensable rating for residuals, shell fragment wound to the left arm, right eye, left knee and left calf. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a hearing at the RO in May 2012. The issue of entitlement to a compensable rating for residuals, shell fragment wound to left arm, right eye, left knee and left calf is addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The issue of aid and attendance for the Veteran's spouse is undergoing development at the RO and is not before the Board. FINDING OF FACT During his May 2012 Board hearing, the Veteran expressed that he wished to withdraw the issue of entitlement to service connection for benign prostatic hypertrophy. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to service connection for benign prostatic hypertrophy have been met. 38 U.S.C.A. § 7105 (West 2002 and Supp. 2013); 38 C.F.R. §§ 20.204, 20.1404 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. During his May 2012 Board hearing, the Veteran expressed that he wished to withdraw his appeal regarding the issue of entitlement to service connection for benign prostatic hypertrophy (claimed as prostate condition). The Board finds that this statement qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204. In light of the Veteran's withdrawal of the appeal, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the claim for entitlement to service connection for benign prostatic hypertrophy (claimed as prostate condition). The claim is dismissed. ORDER The claim for entitlement to service connection for benign prostatic hypertrophy (claimed as prostate disorder) is dismissed. REMAND The Veteran appeals the noncompensable rating assigned for residuals, shell fragment wound to the left arm, right eye, left knee and left calf. During his May 2012 hearing, he expressed that his last VA examination conducted in August 2009 was inaccurate and did not fully address the residuals of his disability to include the left knee and left calf. He also stated that the examination contained conflicting information. A review of the record discloses that another examination is warranted as the August 2009 examination does not fully address the residuals of the Veteran's disability. Furthermore, the examination was conducted over three years ago. To ensure that the record reflects the current severity of his disability, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Simply put, the August 2009 examination report is inadequate for rating purposes and too remote to adequately address the severity of the Veteran's current disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he provide the full name and address of any medical facility and/or provider (VA or private) from whom he received treatment for his disabilities at issue. Following receipt of that information, the RO/AMC should contact all facilities/providers in question, and request that they provide copies of any and all records of treatment provided to the Veteran. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot locate any identified record, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded a VA examination. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for rating residuals of shell fragment wounds, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his residuals. Any and all functional impairment caused by the fragment wounds should be detailed. All pertinent testing should be done. The examiner must be sure to address the applicable rating criteria. A complete rationale for any opinions expressed must be provided. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. 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 D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs