Citation Nr: 1523952	
Decision Date: 06/05/15    Archive Date: 06/16/15

DOCKET NO.  10-19 083	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for bilateral eye retinopathy.

3.  Entitlement to service connection for erectile dysfunction.

4.  Entitlement to a rating in excess of 20 percent for a lumbar spine disability.

5.  Entitlement to special monthly compensation based upon loss of use of a creative organ.


REPRESENTATION

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



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from July 1969 to February 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).  In March 2015, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge.  A copy of the transcript of that hearing is of record.  

The issues of entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based upon loss of use of a creative organ are REMANDED to the Agency of Original Jurisdiction.


FINDING OF FACT

At a March 2015 hearing before the Board, the appellant requested a withdrawal of the appeal as to the issues of entitlement to service connection for hypertension and bilateral eye retinopathy and an increased rating for a lumbar spine disability.



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal as to entitlement to service connection for hypertension by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).

2.  The criteria for withdrawal of the appeal as to entitlement to service connection for bilateral eye retinopathy by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).

3.  The criteria for withdrawal of the appeal as to entitlement to a rating in excess of 20 percent for a lumbar spine disability by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

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 2014).  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 (2014).  Withdrawal may be made by the appellant or the authorized representative.  38 C.F.R. § 20.204 (2014).  

At the March 2015 hearing before the Board, the appellant requested a withdrawal of the appeal as to entitlement to service connection for hypertension and bilateral eye retinopathy and an increased rating for a lumbar spine disability.  Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to those issues.  Accordingly, the Board does not have jurisdiction to review the appeal as to those matters and the appeal is dismissed.



ORDER

The appeal for entitlement to service connection for hypertension is dismissed.

The appeal for entitlement to service connection for bilateral eye retinopathy is dismissed.

The appeal for entitlement to a rating in excess of 20 percent for a lumbar spine disability is dismissed.


REMAND

A review of the record reveals that additional development is required prior to appellate review of the issues remaining on appeal.  In statements and testimony in support of his appeal the Veteran asserted that his erectile dysfunction developed as a result of medications used for the treatment of service-connected diabetes mellitus and coronary artery disease.  Although a May 2012 VA examiner found the Veteran had erectile dysfunction likely due to hypogonadism and not likely due to or aggravated by diabetes mellitus, no opinion was provided as to whether hypogonadism was a result of service or whether erectile dysfunction had been aggravated by medications taken in treatment for diabetes mellitus or coronary artery disease.  Therefore, further action is required for adequate determinations.

In addition, the claim for special monthly compensation for loss of use of a creative organ is inextricably intertwined with the claim for service connection for erectile dysfunction.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain all pertinent VA medical records, not yet associated with the claims file and associate them with the claims file.

2.  Schedule the Veteran for a VA genitourinary examination with a qualified examiner.  The examiner must review the appellate record and must note that review in the report.  All necessary examinations, tests, and studies should be conducted.  The rationale for all opinions should be provided.  The examiner should provide the following opinions:

(a)  Is it at least as likely as not (50 percent probability or greater) that the Veteran has erectile dysfunction as a result of active service or that was incurred during service?

(b)  Is it at least as likely as not (50 percent probability or greater) that erectile dysfunction is due to or the result of a service-connected disability, or treatment for a service-connected disability, to include coronary artery disease or diabetes mellitus?

(c)  Is it at least as likely as not (50 percent probability or greater) that erectile dysfunction has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability, or treatment for a service-connected disability, to include coronary artery disease or diabetes mellitus?

3.  Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs