Citation Nr: 1606638 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 14-23 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a bilateral arm or wrist disorder, to include chronic bilateral epicondylitis and carpal tunnel syndrome. 2. Entitlement to service connection for colitis. 3. Entitlement to service connection for an irregular heartbeat. 4. Entitlement to an initial compensable evaluation of degenerative joint disease of the right ankle. 5. Entitlement to an initial compensable evaluation of degenerative joint disease of the left foot, to include plantar fasciitis with Morton's neuroma and heel spur. 6. Entitlement to an initial compensable evaluation of degenerative joint disease and plantar fasciitis of the right foot. 7. Entitlement to an initial evaluation in excess of 50 percent for a hysterectomy. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to September 1985, and from January 1995 to June 2009. She also served in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's Virtual VA and Veterans Benefit Management System (VBMS) claims files. All records are now in these electronic files. As will be discussed below, the Board is remanding the Veteran's claim for service connection for bilateral epicondylitis for additional development. The Board is also expanding the scope of the claim to encompass any arm or wrist disorder raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The issues of entitlement to service connection for a bilateral arm or wrist disorder, to include chronic bilateral epicondylitis and carpal tunnel syndrome, and for colitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a July 2014 statement, the Veteran's representative noted that the Veteran wanted to withdraw from appellate consideration the issue of entitlement to service connection for an irregular heartbeat. 2. In a July 2014 statement, the Veteran's representative noted that the Veteran wanted to withdraw from appellate consideration the issue of entitlement to an initial compensable evaluation of degenerative joint disease of the right ankle. 3. In a July 2014 statement, the Veteran's representative noted that the Veteran wanted to withdraw from appellate consideration the issue of entitlement to an initial compensable evaluation of degenerative joint disease of the left foot, to include plantar fasciitis with Morton's neuroma and heel spur. 4. In a July 2014 statement, the Veteran's representative noted that the Veteran wanted to withdraw from appellate consideration the issue of entitlement to an initial compensable evaluation of degenerative joint disease and plantar fasciitis of the right foot. 5. In a July 2014 statement, the Veteran's representative noted that the Veteran wanted to withdraw from appellate consideration the issue of entitlement to an initial evaluation in excess of 50 percent for a hysterectomy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's substantive appeal on the issue of entitlement to service connection for an irregular heartbeat have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. The criteria for withdrawal of the Veteran's substantive appeal on the issue of entitlement to an initial compensable evaluation of degenerative joint disease of the right ankle have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for withdrawal of the Veteran's substantive appeal on the issue of entitlement to an initial compensable evaluation of degenerative joint disease of the left foot, to include plantar fasciitis with Morton's neuroma and heel spur, have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204. 4. The criteria for withdrawal of the Veteran's substantive appeal on the issue of entitlement to an initial compensable evaluation of degenerative joint disease and plantar fasciitis of the right foot have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204. 5. The criteria for withdrawal of the Veteran's substantive appeal on the issue of entitlement to an initial evaluation in excess of 50 percent for a hysterectomy have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7105 (West 2014), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 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). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. In the present case, in a July 2014 statement, the Veteran's accredited representative indicated that the Veteran wished to withdraw from consideration the issues of entitlement to service connection for an irregular heartbeat; entitlement to an initial compensable evaluation for degenerative joint disease of the right ankle, degenerative joint disease and plantar fasciitis of the left and right foot; and entitlement to an evaluation in excess of 50 percent for a hysterectomy. Inasmuch as the Veteran, through her representative, has withdrawn her appeal regarding those issues, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on those issues, and they are dismissed. ORDER The appeal as to the issue of entitlement to service connection for an irregular heartbeat is dismissed. The appeal as to the issue of entitlement to an initial compensable evaluation of degenerative joint disease of the right ankle is dismissed. The appeal as to the issue of entitlement to an initial compensable evaluation of degenerative joint disease of the left foot, to include plantar fasciitis with Morton's neuroma and heel spur, is dismissed. The appeal as to the issue of entitlement to an initial compensable evaluation of degenerative joint disease and plantar fasciitis of the right foot is dismissed. The appeal as to the issue of entitlement to an initial evaluation in excess of 50 percent for a hysterectomy is dismissed. REMAND The Veteran seeks service connection for a bilateral arm or wrist disorder, to include chronic bilateral epicondylitis and carpal tunnel syndrome, and service connection for colitis. Bilateral Arm or Wrist Disorder In July 2009, a VA examiner noted that the Veteran was diagnosed with epicondylitis in 1998, and her symptoms resolved over the course of two years. The examiner noted the Veteran reported very infrequent bilateral elbow pain and weakness. Both the right and left elbow exams were normal, and right and left elbow x-rays showed no significant abnormalities. The examiner found no evidence for lateral epicondylitis. The examiner did not address the Veteran's reported bilateral wrist pain. February 2001 service treatment records reflect treatment for lateral epicondylitis. A diagram in those records indicates the Veteran had weakness and tingling in her left wrist as well as dull pain and weakness in her left elbow, and she reported problems with pain when grasping things. January 2010 private medical records contain an evaluation that suggests bilateral carpal tunnel syndrome, and April 2010 private medical records reflect an operation for right carpal tunnel syndrome. In the Veteran's August 2010 notice of disagreement, she addresses the denial of service connection for chronic bilateral epicondylitis by stating that her carpal tunnel syndrome has bothered her since before her retirement from service. A claim is not necessarily limited in scope to a single or particular diagnosis and should be construed "based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed processing that claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, the Veteran appears to have reasonably expected that her claim for bilateral epicondylitis included a claim for a bilateral wrist disability. Under these circumstances, a remand is needed to obtain a VA examination to address whether any diagnosed bilateral carpal tunnel syndrome is etiologically related to her service, to include as secondary to her in-service diagnosis of lateral epicondylitis. See, e.g., August 1999 Service Treatment Records. An additional examination to determine whether the Veteran currently has a diagnosis of bilateral epicondylitis that is etiologically related to service would also be helpful in adjudicating her claim. Colitis In July 2009, a VA examiner found no evidence for recurrent or chronic colitis. The examiner noted a single episode of abdominal pain and bloody diarrhea in 2007, which resolved after treatment with antibiotics. The examiner did not address the fact that service treatment records and private medical records reflect multiple instances of abdominal pain and bowel problems prior to 2007. See, e.g., March 1996, September 1996, and October 2004 Service Treatment Records; January 2002 Private Medical Records. The examiner also did not address the Veteran's October 2008 diagnosis of left-sided colitis. See October 2008 Service Treatment Records; October 2008 Private Medical Records. Therefore, the July 2009 examination is inadequate for rating purposes. A remand is also needed for a VA examination to determine whether the Veteran has a current diagnosis of colitis that is etiologically related to her service. The examiner must address the Veteran's medical history of abdominal pain and bowel problems, as well as her October 2008 diagnosis of colitis. Finally, any outstanding, relevant treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. With the assistance of the Veteran as necessary, obtain any outstanding, relevant treatment records concerning any bilateral arm or wrist disorder, including bilateral epicondylitis and carpal tunnel syndrome, and concerning colitis. All attempts to obtain records should be documented in the claims folder. 2. After any additional records are obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed right and/or left arm or wrist disorder. The electronic claims folders must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the claims files have been reviewed. Following the examination, the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that any diagnosed arm or wrist disorder is etiologically related to or aggravated by service. Further, if a wrist disorder, to include carpal tunnel syndrome, is diagnosed, the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that it is etiologically related to the Veteran's in-service diagnosis of lateral epicondylitis. See, e.g., August 1999 Service Treatment Records. If an arm or wrist disorder is not shown, that should also be noted. A complete rationale must be provided for these opinions. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed colitis. The electronic claims folders must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the claims files have been reviewed. Following the examination, the examiner must opine as to whether it is at least as likely as not (50 percent or greater possibility) that any diagnosed colitis is etiologically related to or aggravated by service. The examiner must address the Veteran's history of in-service treatment for abdominal pain and bowel problems, as well as her October 2008 diagnosis of colitis. See October 2008 Service Treatment Records; October 2008 Private Medical Records. If colitis is not shown, that should also be noted. A complete rationale must be provided for these opinions. 4. After completing the actions detailed above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs