Citation Nr: 1602587	
Decision Date: 01/28/16    Archive Date: 02/05/16

DOCKET NO.  11-04 844	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to a disability rating in excess of 10 percent for a right knee ligament tear with degenerative joint disease.

2. Entitlement to a compensable disability rating for forehead scars.

3. Entitlement to service connection for a spinal condition.

4. Entitlement to a combined evaluation in excess of 40 percent.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Roggenkamp, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1982 to March 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  The case was subsequently transferred to Detroit, Michigan.

The Veteran testified at a videoconference hearing in October 2015 before the undersigned.  A copy of the transcript has been associated with the Veteran's electronic claims file.

The Veteran submitted a waiver of his right to have the RO review newly submitted evidence and allowing the Board to proceed with an appeal.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record.

The issues of increased ratings for a right knee ligament tear and scars, and service connection for a spinal condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

In October 2015, prior to the promulgation of a decision on the issue of entitlement to a combined evaluation in excess of 40 percent, the Veteran, withdrew his appeal.  


CONCLUSION OF LAW

The criteria for withdrawal of the Veteran's appealed claim for a combined evaluation in excess of 40 percent have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 


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 2014).  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204 (2015).  Withdrawal may be made by the veteran or by his authorized representative.  38 C.F.R. § 20.204 (2015).   

At his October 2015 hearing before the Board, the Veteran withdrew his appeal as to a combined evaluation in excess of 40 percent.  The Veteran's statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal.  See Tomlin v. Brown, 5 Vet. App. 355 (1993).

Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


ORDER

The appeal concerning the issue of a combined evaluation in excess of 40 percent is dismissed.


REMAND

At the Veteran's October 2015 hearing, he referenced private treatment records for his scars and for his knee, which would show the Veteran's current conditions in both instances.  The Veteran also indicated that there were outstanding treatment records regarding his spinal condition from 1987 or 1988, and additional records from Providence Hospital in the late 1990s.  Where VA has constructive and actual knowledge of the availability of pertinent records in the possession of the VA, an attempt to obtain them must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Additionally, with regard to his claim for an increased rating for his knee condition, his most recent VA examination was conducted in July 2010, over five years ago, and the Veteran's testimony at his hearing suggests that since that time, his disability has increased in severity.  A new examination is needed to assess the current severity of his knee condition.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Finally, at the Veteran's July 2010 VA examination for his spinal condition, the examiner opined that the Veteran had mild scoliosis, which was likely developmental and not likely related to nor aggravated by service.  Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations.  38 C.F.R. § 3.303(c).  Nonetheless, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation.  VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01- 85 (March 5, 1985).  The VA General Counsel's opinion also notes that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations.  The presumption of soundness applies to a congenital disease but not to a congenital defect.  Quirin v. Shinseki, 22 Vet. App 390, 397 (2009).  A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service.  VAOPGCPREC 82-90.  Additionally, in a December 2004 treatment record, the Veteran was diagnosed with a disc herniation and foraminal non-compressive disc displacement.  It is unclear if these diagnoses are related to the Veteran's scoliosis, or are a separate, and separately ratable, condition.  An addendum opinion is necessary to assess whether the Veteran's developmental scoliosis is a congenital disease or defect, and whether any diagnosable spinal conditions are related to service.

Accordingly, the case is REMANDED for the following action:

1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, including any treatment records from private doctors treating his skin condition, his knee condition, or from treatment to his back in the late 1980s and 1990s, including from Providence Hospital.  The AOJ must request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or examined him for his scars, knee condition, and spinal condition.  An attempt must be made to obtain, with any necessary authorization from the Veteran, copies of pertinent records identified by him in response to this request which have not been previously secured.

The attempts to obtain this information, as well as any negative response, should be documented in the claims folder. If the record is unavailable, the appellant must be provided with notice of this fact in compliance with 38 C.F.R. § 3.159(e)(1). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the appellant submits records that VA was unable to obtain and (4) notice that the appellant is ultimately responsible for providing the evidence.

2. After those records are obtained or it is determined that they cannot be obtained, the RO must provide the Veteran's claims file to an examiner who is qualified to give an opinion on the Veteran's right knee ligament tear, so a new examination may be provided.  The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

a) The examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

b) Although an independent review of the claims file is required, the Board calls the examiner's attention to the Veteran's October 2015 hearing testimony alleging worsening of his condition.

c) Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity of the Veteran's right knee ligament tear, and its impact on his employability and daily activities.

d) As part of the opinion, the examiner must address the Veteran's competent lay statements regarding onset in his or her rationale, as well as any relevant statements from treatment records.  

e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

3. After those records are obtained or it is determined that they cannot be obtained, the RO must provide the Veteran's claims file to an examiner who is qualified to give an opinion on the Veteran's spinal condition, so a new opinion may be provided.  A new examination is only required if deemed necessary by the examiner.  The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

a) If a new examination is conducted, the examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

b) Although an independent review of the claims file is required, the Board calls the examiner's attention to the Veteran's private treatment records from the 1980s and 1990s, if available.

c) The examiner must specifically identify all diagnoses of the Veteran's spine, and provide an opinion including specific findings on the following:

i) For any spinal condition that is not congenital, the examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the disability had onset in service or was caused or permanently aggravated by the Veteran's active military service.

ii) For any spinal condition that is congenital, to include scoliosis, the examiner is asked to opine whether the condition is a disease or a defect. For VA compensation purposes, the term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990).

iii) If a diagnosed spinal condition is determined to be a congenital disease (not a defect), than the examiner is asked to opine if it is at least as likely as not that the condition was permanently aggravated (worsened) by the Veteran's active military service.

iv) If a diagnosed spinal condition is determined to be a congenital defect (not a disease), the examiner is asked to opine whether it is at least as likely as not that the Veteran suffered a superimposed injury or disease to the back in service which resulted in additional disability.

d) As part of the opinion, the examiner must address the Veteran's competent lay statements regarding onset in his or her rationale, as well as any relevant statements from treatment records.  

e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

4. After the above has been completed, the RO must review the claims file and ensure that the foregoing development action has been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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 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 2014).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs