Citation Nr: 1428083	
Decision Date: 06/20/14    Archive Date: 06/26/14

DOCKET NO.  07-09 220	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a bilateral foot disorder.

2.  Entitlement to service connection for a left leg disorder.

3.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to June 1971.  

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  In November 2009, the Veteran testified at a videoconference hearing before the undersigned.  In June 2010, the Board remanded the claims for additional development.  

In April and May 2012, VA received additional evidence, consisting of private medical records, which were not initially considered by the Agency of Original Jurisdiction (AOJ).  In March 2014, the Veteran indicated that he wanted the Board to remand his case to the AOJ for review of this additional evidence.  See 38 C.F.R. § 20.1304(c) (pertinent evidence received by the Board must be referred to the AOJ for initial consideration unless this right is waived by the appellant).  

The issues of entitlement to service connection for a left leg disorder and entitlement to an increased rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

In April 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for a bilateral foot disorder.  


CONCLUSION OF LAW

The criteria for withdrawal of the substantive appeal of the issue of entitlement to service connection for a bilateral foot disorder 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

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his or her authorized representative.  Id.  

In April 2014, the Board received a written statement from the Veteran documenting his desire to withdraw his appeal as to the issue of entitlement to service connection for a bilateral foot disorder.  See 38 C.F.R. § 20.204(b)(1).  As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue, and the Board does not have jurisdiction to review the appeal.  38 C.F.R. §§ 20.202, 20.204(c).  


ORDER

The appeal of the issue of entitlement to service connection for a bilateral foot disorder is dismissed.



REMAND

Before the Board can adjudicate the matters remaining on appeal, additional action is required.  

As noted above, VA received additional pertinent evidence in April and May 2012.  Pursuant to his request, the Board is obligated to remand the claims for initial consideration of this evidence by the AOJ.  See March 2014 Additional Evidence Response Form; 38 C.F.R. § 20.1304(c) (2013).

In addition, the Board finds that a supplemental medical opinion is necessary to rectify deficiencies in the March 2011 VA examination for the Veteran's claimed left leg disorder.  The examination report indicates that the VA examiner did not review the Veteran's private treatment records even though the claims file included such pertinent records.  Furthermore, changes have been made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange.  See 78 Fed. Reg. 54763 (September 6, 2013); 38 C.F.R. § 3.309(e).  These changes replaced the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy."  VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset.  Under the amendments, peripheral neuropathy still needs to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient.

Because the Veteran receives ongoing treatment from the Salem VA Medical Center and Danville Community Based Outpatient Clinic, any outstanding VA treatment records should also be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any outstanding treatment records for the Veteran from the Salem VA Medical Center and Danville Community Based Outpatient Clinic dated since December 2010.  If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).

2.  After the development requested in item 1 has been completed, return the claims file to the VA examiner who conducted the March 2011 VA examination (or another examiner if unavailable) for preparation of an addendum opinion.  If the examiner determines that an examination is required, one must be conducted.  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic folder, to include any private treatment records) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review.

The examiner is requested to review all additional relevant evidence added to the Veteran's claims file and electronic folder since March 2011 and indicate whether such evidence changes his prior conclusions and opinions.  Given the changes in the regulation pertaining to herbicide exposure and presumptive service connection for peripheral neuropathy, the examiner should specifically address the following questions:

(a)  Whether it is at least as likely as not (probability of at least 50 percent) that the Veteran has "early-onset" peripheral neuropathy, which manifested within one year after the date of last exposure to herbicides, including Agent Orange, during military service in Vietnam

(b)  If the Veteran does not have "early-onset" peripheral neuropathy, whether it is at least as likely as not (probability of at least 50 percent) that his current peripheral neuropathy is related to herbicide exposure, including Agent Orange, during military service in Vietnam, or is otherwise attributable to said service.

(For the purposes of providing any opinion, the Veteran's exposure to herbicides, including Agent Orange, during service is presumed.)

In rendering any opinion, the examiner is instructed to specifically comment on any statements from the Veteran regarding the onset and continuation of symptoms.  The medical reasons for accepting or rejecting the Veteran's report should be set forth in detail. 

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3.  After completing the requested action, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims in light of all pertinent evidence and legal authority.  If any benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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).

These claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board 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).



______________________________________________
S. C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs