Citation Nr: 1418616 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 10-05 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for sinusitis also diagnosed as environmental allergies. 2. Entitlement to an initial evaluation higher than 10 percent for chronic lumbosacral strain. 3. Entitlement to an initial compensable evaluation for left foot status post stress fracture. 4. Entitlement to an initial compensable evaluation for hemorrhoids. 5. Entitlement to an initial compensable evaluation for left testicle epididymal cyst. 6. Entitlement to an initial evaluation higher than 10 percent for left shoulder degenerative joint disease. 7. Entitlement to an initial evaluation higher than 10 percent for right shoulder degenerative joint disease. 8. Entitlement to an initial compensable evaluation for onychomycosis, right great toenail. 9. Entitlement to an initial evaluation higher than 10 percent for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J.B. ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to January 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran was afforded a videoconference hearing before the undersigned in July 2011. A transcript of that hearing is of record. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for sinusitis, entitlement to an initial evaluation higher than 10 percent for chronic lumbosacral strain, entitlement to an initial compensable evaluation for left foot status post stress fracture, entitlement to an initial compensable evaluation for hemorrhoids and entitlement to an initial compensable evaluation for left testicle epididymal cyst are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During his July 2011 Board hearing, the Veteran withdrew from appellate consideration the issues of entitlement to initial higher ratings for left shoulder degenerative joint disease, right shoulder degenerative joint disease, onychomycosis of the right great toenail, and indicated that the issue of entitlement to a higher initial rating for tinnitus had been withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the appeals of entitlement to initial higher ratings for left shoulder degenerative joint disease, right shoulder degenerative joint disease, onychomycosis of the right great toenail and tinnitus 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 During his July 2011 Board hearing, the Veteran expressed that he wished to withdraw the issues of entitlement to initial higher ratings for left shoulder degenerative joint disease, right shoulder degenerative joint disease, onychomycosis of the right great toenail, and that the issue of entitlement to a higher initial rating for tinnitus had been withdrawn. As these issues were withdrawn on the record at a hearing, the Board finds that the criteria for withdrawal have been met. 38 C.F.R. § 20.204. In light of the Veteran's withdrawal of the issues, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the claims of entitlement to initial higher ratings for left shoulder degenerative joint disease, right shoulder degenerative joint disease, onychomycosis of the right great toenail and tinnitus. The claims are dismissed. ORDER Entitlement to an initial evaluation higher than 10 percent for left shoulder degenerative joint disease is dismissed. Entitlement to an initial evaluation higher than 10 percent for right shoulder degenerative joint disease is dismissed. Entitlement to an initial compensable evaluation for onychomycosis, right great toenail is dismissed. Entitlement to an initial evaluation higher than 10 percent for tinnitus is dismissed. REMAND The Veteran appeals the denial of service connection for sinusitis. When he was examined in October 2008, the diagnosis was "sinusitis diagnosed as environmental allergies." The examiner, however, did not render an etiology opinion regarding the relationship between this disability and service, if any. As the Veteran reports a history of allergy-type symptoms during service and since service, a remand is warranted so that an opinion can be obtained addressing the etiology of the Veteran's disability. The Veteran also appeals the denial of higher initial ratings for lumbosacral strain, left foot status post stress fracture, hemorrhoids and left testicle epididymal cyst. During his July 2011 hearing, he indicated that his disabilities have worsened. The Veteran was last examined for compensation purposes in 2010. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected disabilities. To ensure that the record reflects the current severity of his disabilities, a contemporaneous examination is warranted. On remand, ongoing VA and private treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record any outstanding VA outpatient treatment records related to the issues on appeal. Further, ask the Veteran to authorize VA to obtain any outstanding and relevant private treatment records relevant to his claims. All attempts to procure such records must be documented in the file. If the RO cannot locate such records, 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 then be given an opportunity to respond. 2. Obtain a VA opinion addressing the issue of whether the Veteran's sinusitis diagnosed as environmental allergies is related to service and/or was aggravated by service. The examiner is to be provided access to the Veteran's Virtual VA file. Following a review of all of those documents, the examiner is to opine whether it is at least as likely as not, i.e., is there a 50/50 chance or greater that any current disability relating to the sinuses were caused by service, or, if such disability preexisted service was aggravated by such service. When rendering the opinion, the examiner must address the Veteran's contentions that his disability could have resulted from exposure to dust as an ABC driver during service. The examiner must offer a fully reasoned rationale for all opinions offered. 3. Thereafter, schedule the Veteran for a VA compensation examination to determine the severity of his lumber spine disability. Access to the Veteran's Virtual VA file must be made available to the examiner for review. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examination should be in accordance with the current worksheet or disability benefits questionnaire, to include findings consistent with criteria of DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner should also address any neurological problems associated with the spine. A complete rationale should be provided for any opinion expressed. 4. Schedule the Veteran for a VA examination to determine the severity of his left foot status post stress fracture. The examiner must be provided access to the Veteran's Virtual VA file. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examination should be in accordance with the current worksheet or disability benefits questionnaire, to include an opinion as to whether the Veteran's left foot disability is moderate, moderately severe, or severe. A complete rationale should be provided for any opinion(s) expressed. 5. Schedule the Veteran for a VA examination to determine the severity of his hemorrhoids. The examiner is to be provided access to the Veteran's Virtual VA file. The examination should be in accordance with the current worksheet or disability benefits questionnaire, to include a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his hemorrhoids. The examiner must be sure to address the applicable rating criteria. A complete rationale for any opinion expressed must be provided. 6. Schedule the Veteran for a VA examination to determine the severity of his left testicle epididymal cyst. All necessary tests should be performed. The examination should be in accordance with the current worksheet or disability benefits questionnaire, to include a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his left testicle epididymal cyst. A complete rationale for any opinion expressed must be provided. 7. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issue. If the benefits sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims 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. 2013). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs