Citation Nr: 1337397	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  09-50 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia



THE ISSUES

1.  Entitlement to service connection for diabetes mellitus with neuropathy, to include as secondary to service-connected Crohn's ileitis.

2.  Entitlement to an initial disability rating in excess of 30 percent for a depressive disorder.


REPRESENTATION

Appellant represented by:	Heather E. Vanhoose, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active service from July 1987 to July 1991 in the United States Army.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and December 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In July 2012, the Veteran presented testimony at a travel board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the Veteran's claims folder.  

The Board remanded the issues on appeal in March 2013 for further development.  The case has since been returned to the Board for appellate review.  

In March 2013, the Board also dismissed various other service connection and increased rating issues that were previously on appeal.  In addition, the Board granted the Veteran a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  Thus, these issues are no longer on appeal before the Board.

A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to secondary service connection for diabetes mellitus with neuropathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO in Huntington, West Virginia.
FINDING OF FACT

In a July 2013 letter, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated that the appeal was being withdrawn as to the issue of an initial rating greater than 30 percent for a depressive disorder.  


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met for the issue of an increased initial rating greater than 30 percent for a depressive disorder.  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

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).  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 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies.  38 C.F.R. § 20.204(c).  

In the present case, in a July 2013 letter, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated that the appeal was being withdrawn as to the issue of an increased initial rating greater than 30 percent for a depressive disorder.  They also cancelled the pending hearing request for this issue.  

Hence, with regard to the issue of an increased initial rating greater than 30 percent for a depressive disorder, there remain no allegations of errors of fact or law for appellate consideration for this particular issue.  Accordingly, the Board does not have jurisdiction to review that part of the appeal, and it is dismissed.

ORDER

The appeal for an initial disability rating in excess of 30 percent for a depressive disorder is dismissed.


REMAND

The Board previously remanded the diabetes mellitus issue in March 2013 for the following further development, which included securing any additional VA or private treatment records and affording the Veteran a VA examination to determine the etiology of any diabetes mellitus.  The RO was directed to then readjudicate the claim.  

The U.S. Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id.   

A review of the claims file, the Virtual VA paperless claims processing system, and the VBMS system does not show that the above requested development was completed by the RO in Huntington, West Virginia.  There is also no indication in the Veterans Appeals Control and Locator System (VACOLS) that the diabetes mellitus claim was readjudicated by the RO in a supplemental statement of the case (SSOC).  Therefore, in light of Stegall, supra, the diabetes mellitus issue is once again remanded to the RO to ensure compliance with the Board's previous March 2013 remand instructions.

Accordingly, the case is REMANDED for the following action:

1.  The RO is directed to comply with the Board's previous March 2013 remand instructions, if it has not done so already.  

2.  That is, the RO should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all VA and non-VA health care providers who have treated him for diabetes mellitus.  After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should obtain copies of all such records. 

The RO should also obtain any ongoing treatment records from the VAMC in Huntington, West Virginia.

All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the claims folder.

3.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any diabetes mellitus that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. 

The examiner should comment as to whether it is at least as likely as not that that the Veteran currently has diabetes mellitus that is either caused by or permanently aggravated by his service-connected Crohn's disease.  The VA examiner must ensure that he or she addresses the aggravation aspect of the secondary service connection claim.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

4.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence, to include the evidence contained in the Veteran's electronic claims folder.  If the benefit sought is not granted for the issue of secondary service connection for diabetes mellitus with neuropathy, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  No action is required of the Veteran until he is otherwise notified by the RO/AMC.  By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

The Veteran 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).




______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs