Citation Nr: 1621288 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 14-00 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent from January 18, 2012, for impairment of sphincter control due to multiple sclerosis. 2. Entitlement to an initial rating in excess of 20 percent from January 18, 2012, for voiding dysfunction due to multiple sclerosis. 3. Entitlement to an initial rating in excess of 30 percent from January 18, 2012, for peripheral vestibular disorders due to multiple sclerosis. 4. Entitlement to an initial compensable rating from January 18, 2012, for pharynx/mild swallowing symptoms due to multiple sclerosis. 5. Entitlement to an initial rating in excess of 70 percent from January 18, 2012, for an adjustment disorder due to multiple sclerosis. 6. Entitlement to an initial rating in excess of 10 percent from May 23, 2012, for right upper extremity muscle weakness due to multiple sclerosis. 7. Entitlement to an initial rating in excess of 10 percent from May 23, 2012, for left upper extremity muscle weakness due to multiple sclerosis. 8. Entitlement to an initial rating in excess of 20 percent from May 23, 2012, for right lower extremity muscle weakness due to multiple sclerosis. 9. Entitlement to an initial rating in excess of 20 percent from May 23, 2012, for left lower extremity muscle weakness due to multiple sclerosis. 10. Entitlement to an initial compensable rating from July 26, 2005, to January 18, 2012, for a right eye disability. 11. Entitlement to an initial rating in excess of 50 percent from January 18, 2012, for left eye aphakia with right eye pseudophakia and bilateral band keratopathy due to multiple sclerosis. 12. Entitlement to an effective date earlier than January 18, 2012, for the grant of a total rating based on individual unemployability (TDIU). 13. Entitlement to an initial rating in excess of 30 percent from July 26, 2005, to January 18, 2012, for multiple sclerosis. 14. Entitlement to an initial rating in excess of 30 percent from July 26, 2005, to January 18, 2012, for left eye aphakia. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active duty service from June 1982 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2011, the Board remanded a claim for a higher evaluation for multiple sclerosis. The claims for an initial rating in excess of 30 percent from July 26, 2005, to January 18, 2012, for multiple sclerosis and for an initial rating in excess of 30 percent from July 26, 2005, to January 18, 2012, for left eye aphakia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In March 2016, and prior to the promulgation of a Board decision, the Veteran notified the Board that he is not continuing his appeal as to his claims for an initial rating in excess of 30 percent from January 18, 2012, for impairment of sphincter control due to multiple sclerosis, an initial rating in excess of 20 percent from January 18, 2012, for voiding dysfunction due to multiple sclerosis, an initial rating in excess of 30 percent from January 18, 2012, for peripheral vestibular disorders due to multiple sclerosis, an initial compensable rating from January 18, 2012, for pharynx/mild swallowing symptoms due to multiple sclerosis, an initial rating in excess of 70 percent from January 18, 2012, for an adjustment disorder due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for right upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for left upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for right lower extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for left lower extremity muscle weakness due to multiple sclerosis, an initial compensable rating from July 26, 2005, to January 18, 2012, for a right eye disability, an initial rating in excess of 50 percent from January 18, 2012, for left eye aphakia with right eye pseudophakia and bilateral band keratopathy due to multiple sclerosis, and an effective date earlier than January 18, 2012, for the grant of a TDIU. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal as to the claims for an initial rating in excess of 30 percent from January 18, 2012, for impairment of sphincter control due to multiple sclerosis, an initial rating in excess of 20 percent from January 18, 2012, for voiding dysfunction due to multiple sclerosis, an initial rating in excess of 30 percent from January 18, 2012, for peripheral vestibular disorders due to multiple sclerosis, an initial compensable rating from January 18, 2012, for pharynx/mild swallowing symptoms due to multiple sclerosis, an initial rating in excess of 70 percent from January 18, 2012, for an adjustment disorder due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for right upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for left upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for right lower extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for left lower extremity muscle weakness due to multiple sclerosis, an initial compensable rating from July 26, 2005, to January 18, 2012, for a right eye disability, an initial rating in excess of 50 percent from January 18, 2012, for left eye aphakia with right eye pseudophakia and bilateral band keratopathy due to multiple sclerosis, and an effective date earlier than January 18, 2012, for the grant of a TDIU, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in accordance with the United States Court of Appeals for Veterans Claims (Court) holding in Evans v. Shinseki, 25 Vet. App. 7 (2011), the Board in February 2016 wrote to the Veteran to obtain clarification as to the issues on appeal. Also see 38 C.F.R. § 20.101(d) (2015). In his February 2016 reply, the Veteran notified the Board that he is not continuing his appeal as to the denial of his claims for an initial rating in excess of 30 percent from January 18, 2012, for impairment of sphincter control due to multiple sclerosis, an initial rating in excess of 20 percent from January 18, 2012, for voiding dysfunction due to multiple sclerosis, an initial rating in excess of 30 percent from January 18, 2012, for peripheral vestibular disorders due to multiple sclerosis, an initial compensable rating from January 18, 2012, for pharynx/mild swallowing symptoms due to multiple sclerosis, an initial rating in excess of 70 percent from January 18, 2012, for an adjustment disorder due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for right upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for left upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for right lower extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for left lower extremity muscle weakness due to multiple sclerosis, an initial compensable rating from July 26, 2005, to January 18, 2012, for a right eye disability, an initial rating in excess of 50 percent from January 18, 2012, for left eye aphakia with right eye pseudophakia and bilateral band keratopathy due to multiple sclerosis, and an effective date earlier than January 18, 2012, for the grant of a TDIU. Therefore, the Board finds that there remains no allegation of error of fact or law for appellate consideration with respect to these claims. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. ORDER The appeal of the denial of the claims for an initial rating in excess of 30 percent from January 18, 2012, for impairment of sphincter control due to multiple sclerosis, an initial rating in excess of 20 percent from January 18, 2012, for voiding dysfunction due to multiple sclerosis, an initial rating in excess of 30 percent from January 18, 2012, for peripheral vestibular disorders due to multiple sclerosis, an initial compensable rating from January 18, 2012, for pharynx/mild swallowing symptoms due to multiple sclerosis, an initial rating in excess of 70 percent from January 18, 2012, for an adjustment disorder due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for right upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 10 percent from May 23, 2012, for left upper extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for right lower extremity muscle weakness due to multiple sclerosis, an initial rating in excess of 20 percent from May 23, 2012, for left lower extremity muscle weakness due to multiple sclerosis, an initial compensable rating from July 26, 2005, to January 18, 2012, for a right eye disability, an initial rating in excess of 50 percent from January 18, 2012, for left eye aphakia with right eye pseudophakia and bilateral band keratopathy due to multiple sclerosis, and an effective date earlier than January 18, 2012, for the grant of a TDIU are dismissed. REMAND As to the claims for an initial ratings in excess of 30 percent for for multiple sclerosis and left eye aphakia, both from July 26, 2005, to January 18, 2012, the Board finds that a remand to obtain retroactive medical opinions as to the severity of these disabilities for the time period in question is required because the existing record is not adequate to provide the Board with this needed information. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006). While the appeal is in remand status, the Board also finds that the AOJ should obtain and associate with the claims file any outstanding medical records for the July 26, 2005, to January 18, 2012, time period as well as lay statements from the Veteran and others who have first-hand knowledge of the problems caused by his r multiple sclerosis and left eye aphakia during this time, include all problems they caused with employment. See 38 U.S.C.A. § 5103A(b) (West 2014). Accordingly, these issues are REMANDED for the following actions: 1. After obtaining all needed authorizations, associate with the claims file any outstanding private treatment records for the July 26, 2005, to January 18, 2012, time period. 2. Notify the Veteran that he may submit statements from himself and from other individuals who have first-hand knowledge of the problems caused by his multiple sclerosis and left eye aphakia during this time, include all problems they caused with employment, for the July 26, 2005, to January 18, 2012, time period. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After undertaking the above development to the extent possible, obtain a retroactive medical opinion from an appropriate VA doctor as to the nature, extent, and severity of his multiple sclerosis, to include all problems it caused with with employment, for the July 26, 2005, to January 18, 2012, time period. The claims file should be made available to and reviewed by the examiner. The examiner in providing the above opinion should specifically discuss the Veteran's competent claims regarding his adverse symptomatology. The examination report must include a complete rationale for all opinions expressed. 4. After undertaking the above development to the extent possible, obtain a retroactive medical opinion from an appropriate VA doctor as to the nature, extent, and severity of his left eye aphakia, to include all problems it caused with with employment, for the July 26, 2005, to January 18, 2012, time period. The claims file should be made available to and reviewed by the examiner. The examiner in providing the above opinion should specifically discuss the Veteran's competent claims regarding his adverse symptomatology. The examination report must include a complete rationale for all opinions expressed. 5. After completion of all requested and necessary development, the AOJ should adjudicate the claims. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the appeal should 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs