Citation Nr: 1337137	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  05-39 051	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for a left eye disability.  

2.  Entitlement to service connection for a right eye disability.  

3.  Entitlement to an initial compensable rating for left big toe fracture.  

4.  Entitlement to an initial rating greater than 30 percent prior to March 11, 2013, for migraines.  

5.  Entitlement to an initial compensable rating for hemorrhoids. 

6.  Entitlement to an initial rating for left wrist carpal tunnel syndrome, evaluated as 10 percent disabling prior to October 21, 2006, and as 20 percent disabling from that day forward, with a temporary total rating assigned from December 19, 2007, to February 1, 2008.  

7.  Entitlement to an initial rating for right wrist carpal tunnel syndrome, evaluated as 10 percent rating prior to October 21, 2006, and as 30 percent disabling from that day forward, with a temporary total evaluation assigned from December 5, 2007, to February 1, 2008.  

8.  Entitlement to an initial rating for left knee strain in excess of 10 percent prior to March 11, 2013.  

9.  Entitlement to an initial compensable rating for left knee instability prior to October 21, 2006.  

10.  Entitlement to an initial compensable rating for right big toe ingrown toenail.  

11.  Entitlement to an initial rating in excess of 10 percent for lumbosacral strain prior to October 21, 2006.  

12.  Entitlement to an effective date earlier than February 16, 2011, for a 70 percent disability rating for posttraumatic stress disorder (PTSD).  

13.  Whether an October 2012 substantive appeal regarding increased ratings for a left shoulder disability, left hip disability, and fibromyalgia was timely filed.  


WITNESSES AT HEARINGS ON APPEAL

Appellant and her spouse


ATTORNEY FOR THE BOARD

Bordewyk, Alicia R.


INTRODUCTION

The Veteran served on active duty from June 1993 to December 2002.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2004, December 2006, February 2009, June 2011, and February 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The September 2004 rating decision, in relevant part, denied entitlement to service connection for joint pain of the left shoulder, joint pain of the left hip, left eye astigmatism, and right eye astigmatism.  The decision also granted service connection for migraine headaches, with a 10 percent rating assigned, left wrist carpal tunnel syndrome (CTS), with a 10 percent rating assigned, right wrist CTS, with a 10 percent rating assigned, left knee strain, with a 10 percent rating assigned, hemorrhoids, with a noncompensable rating assigned, residuals of left big toe fracture, with a noncompensable rating assigned, right big toe ingrown toenail, with a noncompensable rating assigned, and lumbosacral strain, with a 10 percent rating assigned.  All evaluations were given an effective date of December 12, 2002.  

In the December 2006 rating decision, the RO assigned a separate 10 percent disability for left knee instability, effective in October 2006.  A December supplemental statement of the case (SSOC) increased the rating assigned for migraine headaches to 30 percent, effective in December 12, 2002, and increased the rating assigned for left wrist CTS to 20 percent, for right wrist CTS to 30 percent, and lumbar strain to 20 percent, effective in October 21, 2006. 

The Veteran underwent carpal tunnel release in both wrists in December 2007.  A temporary total disability evaluation was assigned effective December 19, 2007, through January 31, 2008, for the left wrist, and effective December 5, 2007, though January 31, 2008, for the right wrist, based on the differing dates of the surgical procedures.  The previously assigned 20 and 30 percent evaluations were continued, respectively, for left wrist CTS and right wrist CTS, effective February 1, 2008.  The record thus presents three time periods for each wrist.  For the left wrist, that prior to October 21, 2006, that prior to December 19, 2007, and that beginning February 1, 2008.  For the right wrist, that prior to October 21, 2006, that prior to December 5, 2007, and that beginning February 1, 2008. 

A February 2009 rating decision, in relevant part, granted entitlement to service connection for left shoulder strain/sprain and impingement syndrome, fibromyalgia, and left hip strain/sprain.  

A June 2011 rating decision granted an increased rating of 70 percent for PTSD, effective February 16, 2011.  

In February 2013, the RO notified the Veteran that her appeal with respect to fibromyalgia, left hip strain, and left shoulder strain, was not timely submitted.  In addition, while she timely filed a notice of disagreement with the effective date of the increased 70 percent rating assigned for PTSD, she did not timely file an appeal of the rating assigned.  The Veteran has perfected an appeal of the RO's decision regarding the timeliness of her appeal of the fibromyalgia, left hip strain, and left shoulder strain issues.  

Finally, in May 2013, an increased rating of 50 percent was granted for migraines, and an increased rating of 20 percent was granted for left knee strain, both effective March 11, 2013. 

In August 2009, the Board remanded the claim in order to provide the Veteran with a requested hearing before a Decision Review Officer (DRO) and the Board.  She and her spouse appeared before a DRO in January 2010 and before the undersigned Veterans Law Judge in June 2013.  Transcripts of each hearing are of record.  

During the Board hearing, the Veteran stated that she was satisfied with the 50 percent disability rating assigned for migraines, the 20 percent rating assigned for left knee strain, the 10 percent rating assigned for left knee instability, and the 20 percent disability rating assigned for lumbosacral strain.  She stated that she wanted to limit her appeal of those issues to obtaining an earlier effective date for those ratings.  The issues have been recharacterized accordingly.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

Other than the issue involving the rating for a left big toe fracture, which is addressed in the decision below, the case will be remanded for further evidentiary action.


FINDING OF FACT

During the June 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal with regard to the issue of entitlement to a higher rating for residuals of a left big toe fracture.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal of entitlement to a higher rating for residuals of a left big toe fracture have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

During the June 2013 hearing, the Veteran stated that she would like to withdraw her appeal of entitlement to a higher rating for residuals of a left big toe fracture.  

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  Withdrawal may be made by the claimant or by her authorized representative.  38 C.F.R. § 20.204.  

The appellant has withdrawn the appeal of this rating issue and, hence, there remain no allegations of errors of fact or law for appellate consideration.  As such, the Board does not have jurisdiction to review her claim of entitlement to a higher rating for residuals of a left big toe fracture, and that claim is dismissed.


ORDER

Entitlement to a higher rating for a left big toe fracture is dismissed.  


REMAND

In a July 2009 statement, the Veteran reported that she was receiving ongoing treatment with Kaiser Permanente and including, but not limited to, Drs. David Lee, Mallory Leon, Chris Pham, Gregory Gray, and "MFT," among others.  Indeed the claims file demonstrates treatment with these care providers.  In addition, the Veteran reported in June 2010 that she saw a pain management doctor monthly in an effort to manage pain she has associated with joint pain and fibromyalgia and that she was seeing a clinical therapist and psychiatrist.  Finally, during the June 2013 Board hearing she reported that her neurologist was sending her for an MRI and lumbar puncture related to her eye symptoms.  

It appears that there are outstanding private treatment records as the last treatment records associated with the claims file are dated in 2009.  Moreover, there do not appear to be records from a pain management doctor in the claims file.  VA has a duty to obtain relevant records of private treatment.  38 U.S.C.A. § 5103A(b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994).  These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159 (2013). 

Regarding the issue of entitlement to an earlier effective date for the 70 percent PTSD rating and the issue of whether her appeal regarding the ratings assigned for fibromyalgia, left hip disability, and left shoulder disability were timely, the Veteran perfected her appeal of those issues by a VA Form 9 received in July 2013, at which time she requested a Board hearing at the RO.  While she has had a hearing regarding the other issues on appeal, these two additional issues were not appealed until after that hearing.  She is entitled to a hearing regarding those two issues.  The Board notes that the hearing to be scheduled should be limited to the issues of entitlement to an earlier effective date for the 70 percent rating assigned for PTSD and whether her appeal regarding the ratings assigned for fibromyalgia, left hip disability, and left shoulder disability was timely filed.  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, to include with Kaiser Permanente, her pain management doctor, her clinical therapist and psychiatrist, and Drs. David Lee, Mallory Leon, Chris Pham, Gregory Gray, and "MFT," in addition to any other private treatment she has obtained since her discharge from service.  

If the Veteran fails to complete necessary authorizations, tell her that she may obtain and submit the records herself.

If any records cannot be obtained, inform the Veteran of this fact, tell her what efforts were made to obtain the records, and advise her of any additional development that will be undertaken.

2.  If new evidence is received, determine whether another VA examination is required for any of the service connection or increased rating issues on appeal.  If so, the examination(s) must be conducted and the agency of original jurisdiction (AOJ) should review the examination report(s) to ensure that the necessary information, opinions, and explanations are sufficient to decide the issue(s).

3.  After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained.  If any benefit sought remains denied, the Veteran should be furnished with a supplemental statement of the case and given opportunity to respond.  

4.  Schedule the Veteran for a Board hearing at the RO related to the issues of entitlement to an earlier effective date for the 70 percent rating assigned for PTSD and whether her appeal regarding the ratings assigned for fibromyalgia, left hip disability, and left shoulder disability was timely filed. 

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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2002 & Supp. 2013).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs