Citation Nr: 1308897	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  08-34 882	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a compensable initial evaluation for bilateral carpal tunnel syndrome.  

2.  Entitlement to an initial evaluation in excess of 10 percent for ulcerative colitis prior to October 27, 2011.  

3.  Entitlement to a staged initial evaluation in excess of 30 percent for ulcerative colitis from October 27, 2011.  

4.  Entitlement to an initial evaluation in excess of 10 percent for residuals of a fractured left forearm, status post open reduction with internal fixation.  

5.  Entitlement to a compensable initial evaluation for residuals of a left femur fracture, status post open reduction and internal fixation.  

6.  Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected residuals of a left femur fracture, or in the alternative, claimed as due to undiagnosed illness.  

7.  Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder and/or left arm/forearm disabilities, or in the alternative, claimed as due to undiagnosed illness.  



REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Dale, Counsel


INTRODUCTION

The Veteran had active duty from February 1987 to February 2007, to include service in Southwest Asia.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran testified at a Travel Board hearing which was chaired by a Veterans Law Judge at the Waco RO in March 2011.  A transcript of the hearing has been associated with the Veteran's VA claims folder.  At this hearing, the Veteran orally withdrew his claim for an increased initial evaluation for bilateral carpal tunnel syndrome and also submitted a signed statement reflecting his desire to withdraw this claim.  

These matters were previously remanded by the Board in September 2011 for further procedural and evidentiary development.  The Veteran's claims have been returned to the Board for appellate proceedings.  

The Board observes that the Veteran's claim for an initial compensable evaluation for bilateral carpal tunnel syndrome was not listed among the Veteran's claims on the title page of the Board's September 2011 remand.  As noted above, the Veteran had withdrawn that issue in March 2011, and this was noted by the Board in the Introduction of the September 2011 remand.  However, since the Board did not formally dismiss this claim at the time of its September 2011 remand, the issue remains on appeal and under the jurisdiction of the Board.

In a September 2012 rating decision, the VA Appeals Management Center (AMC) increased the evaluation assigned for the Veteran's ulcerative colitis from 10 percent to 30 percent, effective from October 27, 2011.  Accordingly, the Veteran's claim has been bifurcated to reflect the "staged" ratings created by this award.  Fenderson v. West, 12 Vet. App. 119 (1999).  As this increase does not represent a full grant of the benefits sought, the Veteran's appeal is not abrogated and the matter remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Veteran was advised in a November 2012 letter that he was entitled to an additional hearing, as the Board no longer employed the Veterans Law Judge who conducted the March 2011 hearing.  38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012).  In a December 2012 response, the Veteran indicated that he did not wish to participate in another hearing before a Board member, and thus, the Board will proceed to adjudicate his claims based on the evidence of record.  

During the pendency of this case, the Veteran also perfected appeals to the Board concerning claims to establish service connection for a low back disorder and a respiratory disorder.  In rating decisions dated in June 2009 and September 2012, the RO and AMC, respectively, granted service connection for these disorders.  Since service connection has been granted for these disorders, the Veteran's appeals as to those issues have become moot.  The Veteran has not disagreed with the assigned disability ratings or the effective dates.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).  Therefore, those matters have been resolved and are not in appellate status. 

The issues of (1) entitlement to an initial evaluation in excess of 10 percent for residuals of a fractured left forearm, status post open reduction with internal fixation, (2) entitlement to a compensable initial evaluation for residuals of a left femur fracture, status post open reduction and internal fixation, (3) entitlement to service connection for bilateral knee disability, to include as secondary to service-connected residuals of a left femur fracture, or in the alternative, claimed as due to undiagnosed illness, (4) entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder and/or left arm/forearm disabilities or in the alternative, claimed as due to undiagnosed illness, (5) entitlement to an initial evaluation in excess of 10 percent for ulcerative colitis prior to October 27, 2011, and (6) entitlement to a staged initial evaluation in excess of 30 percent for ulcerative colitis from October 27, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC.  


FINDING OF FACT

In an March 2011 statement, after certification of the appeal to the Board, but prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the appeal for the issue of entitlement to a compensable initial evaluation for bilateral carpal tunnel syndrome.  


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran for the issue of entitlement to a compensable initial evaluation for bilateral carpal tunnel syndrome have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


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 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, the Veteran, at a March 2011 Board hearing, indicated that it was his intent to withdraw the appeal as to entitlement to a compensable initial evaluation for bilateral carpal tunnel syndrome, and he also submitted a signed statement reflecting this.  (See the March 2011 Board hearing transcript at page 2 as well as a March 2011 statement from the Veteran.)  Thus, that issue is no longer for appellate consideration.  

Also, in light of the Veteran's withdrawal of this claim, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).



ORDER

The issue of entitlement to a compensable initial evaluation for bilateral carpal tunnel syndrome is dismissed.


REMAND

The list of the evidence considered by the AMC in the September 2012 rating decision includes VA treatment records dated to March 2011 and a November 2011 addendum to the October 2011 VA examination.  However, neither the Veteran's claims file nor Virtual VA file includes the November 2011 addendum or any records of VA treatment dated after March 25, 2010.  The United States Court of Appeals for Veterans Claims (the Court) has held that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).  VA has a duty to seek such records, as they may affect all of the Veteran's claims on appeal.  38 C.F.R. § 3.159(c) (2012).  Accordingly, on remand, updated VA treatment records and the November 2011 addendum to the October 2011 VA examination must be obtained and associated with the record.  

As noted by the Board in the September 2011 remand, the record reflects that the Veteran had service in Southwest Asia, and thus, his claims to establish service connection for bilateral knee disability and a left shoulder disorder have been expanded to include entitlement to service connection due to undiagnosed illness under 38 C.F.R. § 3.317.  The Board observes that the Veteran has not been provided the criteria necessary to substantiate a service connection claim under this theory of entitlement as per 38 C.F.R. § 3.317.  If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  Therefore, the Veteran must be provided adequate notice because he has not received such, and the Board is without authority to do so.  

The October 2011 VA examination report reflects a diagnosis of ulcerative colitis, and the examiner specifically stated that no other intestinal condition coexisted.  However, subsequent to the October 2011 VA examination, a private colon biopsy was performed, and pathologic testing indicated diagnoses of infectious colitis and inflammatory bowel disease.  (See a December 2011 pathology report.)  VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  Since the medical evidence of record does not differentiate between symptomatology associated with the Veteran's nonservice-connected inflammatory bowel disease as opposed to his service-connected ulcerative colitis, the Board concludes that further clarification is necessary.  

Also, the October 2011 VA examiner provided a diagnosis of chondromalacia in both knees and opined that such was not related to the Veteran's active duty.  In providing this opinion, the clinician stated that there was nothing in the Veteran's claims file, to include his service treatment records, indicating a chronic disability of either knee, to include arthritis.  However, this opinion is contrary to a February 2006 service treatment record reflecting "osteoarthritis [of the] knee" in the Veteran's list of "Problems."  Further, the examiner's opinion does not address whether the Veteran's documented in-service complaints of bilateral knee pain were early manifestations of his current chondromalacia.  On remand, further clarification concerning these matters must be sought.  

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran and his representative with adequate VCAA notice of the criteria necessary to substantiate claims for service connection as due to an undiagnosed illnesses as per 38 C.F.R. § 3.317.  

2.  Obtain and associate with the claims file all records of VA treatment dated after March 25, 2010, and the November 2011 addendum opinion to the October 2011 VA examination.  All attempts to identify and obtain these records must be commemorated in the Veteran's VA claims file.  If any identified documents are found to be unavailable, all attempts to obtain them and a formal finding of unavailability should be associated with the Veteran's VA claims file.  

3.  Thereafter, request the clinician who conducted the October 2011 VA examination to provide supplemental opinions.  The Veteran's claims folder must be made available to the examiner for review.  After a review of the claims file, the examiner must address the following:  

a.  The VA examiner must attempt to differentiate, to the extent possible, symptoms which are the result of the Veteran's service-connected ulcerative colitis as opposed to his nonservice-connected inflammatory bowel disease diagnosed in a December 2011 private pathology report.  If the VA examiner is unable to differentiate between the symptomatology attributable to these two disorders, he/she must specifically state why this is so.  

b.  State an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's in-service complaints of pain in either knee were early manifestations of his current diagnosis of chondromalacia of the knees.  

c.  State opinions concerning whether it is at least as likely as not (50 percent or greater) that chondromalacia of either knee is the result of his service.  In providing these opinions, the examiner must address the February 2006 service treatment record which reflects "osteoarthritis [of the] knee.  

If the October 2011 clinician is unavailable, another appropriate clinician may provide the requested opinions after review of the entire claims file, to include this remand.  If another examination is deemed necessary, such should be scheduled and the Veteran must be notified of the time and place of the examination.  

4.  Conduct any other development deemed necessary in light of the evidence obtained through the above directives, to include affording the Veteran examinations and obtaining opinions concerning any of the Veteran's claims not specifically enumerated above.  

5.  Thereafter, readjudicate the issues on appeal in light of all of the evidence of record.  If any benefit sought is not granted to the fullest extent, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond.  The case should then be returned to the Board for further appellate consideration.  

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).

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).



_________________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs