Citation Nr: 1626733	
Decision Date: 07/05/16    Archive Date: 07/14/16

DOCKET NO.  07-36 933	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an effective date prior to October 29, 2002, for the award of a total rating based on individual unemployability (TDIU) due to service-connected disability.

2.  Entitlement to service connection for nerve damage of the bilateral feet (claimed as neuropathy of the feet), to include as secondary to a service-connected skin disability.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESSES AT HEARINGS ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Michael Wilson, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to June 1972, including service in the Republic of Vietnam.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2007and August 2008 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs).

The Veteran and his wife testified at a hearing before the Board in August 2010.  They additionally testified at multiple hearings before RO Decision Review Officers.  The hearing transcripts are of record.

The Board previously remanded the Veteran's appeal of entitlement to an earlier effective date for the award of TDIU in November 2010 and May 2012.  An earlier effective date of October 29, 2002, was later granted in a February 2013 rating decision.  As the Veteran had not confirmed whether this effective satisfied his appeal, the Board remanded the issue again in April 2013 for issuance of a supplemental statement of the case.  The Board additionally remanded the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for nerve damage of the bilateral feet for issuance of a statement of the case (SOC).  Cf. Manlincon v. West, 12 Vet. App. 238 (1999).  The Agency of Original Jurisdiction (AOJ) issued the SOC in August 2014 and the Veteran subsequently perfected an appeal for the claim by submitting a VA Form 9 in September 2014.

In the April 2013 remand, the Board additionally remanded the Veteran's claim of entitlement to service connection for an eye disability for further evidentiary development, and a claim of entitlement to an initial disability rating in excess of 10 percent for contact dermatitis for issuance of an SOC.  Service connection was granted for the claimed eye disability in February 2014; thereby constituting a full grant of the benefits sought on appeal with respect to that claim.  Additionally, in an August 2014 rating decision, the AOJ assigned higher ratings of 30 percent, effective May 20, 2008, and 60 percent, effective February 7, 2014, for contact dermatitis; and subsequently, the Veteran specifically excluded the issue of entitlement to a higher initial rating for contact dermatitis from his September 2014 VA Form 9.  Thus, the issue is not on appeal before the Board.

Following issuance of the August 2008 rating decision that, inter alia, denied entitlement to service connection for nerve damage of the bilateral feet, the Veteran submitted a statement in September 2009 asking for review of the rating decision.  The statement was received more than one year after the Veteran was notified of the August 2008 rating decision and thus was not accepted as a timely notice of disagreement (NOD), but rather, as a petition to reopen the previously denied claim.  The Board observes, however, that the record now includes VA treatment records relevant to the claim, dated from September 2008, that were at least constructively of record within the one-year appeal period following issuance of the August 2008 rating decision.  The VA treatment records, therefore, constituted new and material evidence pertaining to the claim.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 C.F.R. § 20.302 (2015).  Accordingly, the August 2008 rating decision was precluded from becoming final with respect to the claim of entitlement to service connection for nerve damage of the bilateral feet, and the Board may properly consider the claim on the merits.  See 38 C.F.R. § 3.156(b) (2015); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). 

The Veteran appears to have raised multiple claims, including of entitlement to a higher disability rating for the service-connected eye disability in a March 2015 statement, and entitlement to an earlier effective date for the award of service connection for his service-connected skin disability in his September 2014 VA Form 9, during the processing of his appeal.  He was notified in an October 2015 letter that VA regulations now require that all claims be submitted on a standardized form; however, it appears that these claims preceded the effective date of the new VA regulations.  Cf. 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (requiring that claims and notices of disagreement be filed on standard forms).  As these issues have not yet been adjudicated, they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for nerve damage of the bilateral feet is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

In a July 2013 letter to his congressman and in a December 2014 statement, prior to the promulgation of a decision in this appeal, the Veteran indicated that he was satisfied with the effective date assigned for the award of entitlement to a TDIU.


CONCLUSION OF LAW

The criteria for withdrawal of the Veteran's claim of entitlement to an effective date prior to October 29, 2002, for the award of a TDIU 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.  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 a claimant or by an authorized representative and must be in writing or on the record at a hearing on appeal.  Id.  

In a July 2013 letter to his congressman and in a December 2014 statement, prior to the promulgation of a final Board decision in this appeal, the Veteran indicated that he was satisfied with the effective date assigned for the award of entitlement to a TDIU.  As such, this issue is withdrawn and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue.  Accordingly, the Board does not have jurisdiction to review it and it is dismissed.


ORDER

The claim of entitlement to an effective date prior to October 29, 2002, for the award of a TDIU is dismissed.


REMAND

The Veteran was afforded a VA peripheral nerve examination in May 2014.  The examiner appeared to inconclusively diagnose peripheral neuropathy, and the examiner failed to indicate which nerves were affected by the apparent peripheral neuropathy.  Other medical evidence of record, including a January 2012 VA neurological evaluation report, indicates that the Veteran's subjective reports were suggestive of peripheral neuropathy, but that there was no objective evidence on examination.  Regardless, the May 2014 VA examiner gave the opinion that the Veteran's claimed neuropathy was less likely than not proximately due to or the result of the Veteran's service-connected skin disability.  The examiner did not clearly address both prospective theories of secondary service connection; whether or not the claimed nerve damage of the bilateral feet was at least as likely as not caused by or aggravated by service-connected contact dermatitis of the feet.  Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

Accordingly, the appeal is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a new VA examination for nerve damage of his bilateral feet.  The examiner should review the claims file, including this REMAND.  All necessary studies and tests should be conducted.  

The examiner must:

A)  After completing all necessary testing, provide a clear diagnosis, to include peripheral neuropathy, for any nerve damage affecting the Veteran's bilateral feet.

B)  Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nerve damage of the bilateral feet had its onset during the Veteran's active service, or is the result of an in-service disease, event, or injury.

C)  Provide an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nerve damage of the bilateral feet is caused by the Veteran's service-connected contact dermatitis affecting the feet.  

D)  If it is not at least as likely as not that diagnosed nerve damage of the bilateral feet is caused by service-connected contact dermatitis, the examiner should additionally provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nerve damage of the bilateral feet has been aggravated (chronically made worse beyond its natural progression) by the Veteran's service-connected contact dermatitis affecting the feet.  

If aggravation is found, the examiner should attempt to establish a baseline level of severity of the diagnosed nerve damage prior to aggravation by the service-connected contact dermatitis.

The examiner must provide a rationale for all opinions and conclusions reached, addressing the Veteran's lay contentions and citing the objective medical findings leading to the conclusions.  

2.  If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



______________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs