Citation Nr: 1640179 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 11-04 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for status post myocardial infarction from March 1, 2010. 2. Entitlement to an initial rating higher than 10 percent for left shoulder arthritis and tendonitis. 3. Entitlement to an initial rating higher than 10 percent for tinnitus. 4. Entitlement to an initial compensable rating for allergic rhinitis. 5. Entitlement to an initial compensable rating for left hip strain. 6. Entitlement to an initial compensable rating for degenerative arthritis of the lower back. 7. Entitlement to service connection for a left hand condition. 8. Entitlement to service connection for a left third finger condition. 9. Entitlement to service connection for bilateral otitis externa, to include as secondary to allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Army form October 1988 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a November 2009 decision, the RO granted service connection for left shoulder arthritis and tendonitis (10 percent), tinnitus (10 percent), allergic rhinitis (0 percent), left hip strain (0 percent), and degenerative arthritis of the lower back (0 percent). All ratings were effective from November 1, 2009. The RO also denied service connection for a left hand condition, left third finger condition, and bilateral otitis externa. In an April 2010 decision, the RO granted service connection for status post myocardial infarction and assigned a 100 percent rating from November 24, 2009, and a 10 percent rating from March 1, 2010. A June 2010 rating decision continued this assigned 10 percent rating. The Veteran was scheduled for a Board hearing in Washington, D.C., on January 28, 2016. However, a 3-hour delayed opening was in effect for government offices that day, and the Veteran had to depart before he was able to attend his hearing. He now resides in China, and his representative has indicated that he will not be able to return for a new hearing. See September 2016 Appellant's Brief. Therefore, the Board will proceed without a hearing in this case. The issues of entitlement to higher initial ratings for status post myocardial infarction, left shoulder arthritis and tendonitis, left hip strain, and lower back degenerative arthritis, as well as service connection for bilateral otitis externa, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In a January 2016 written statement, the Veteran withdrew his appeals for higher initial ratings for tinnitus and allergic rhinitis, and service connection for a left hand condition and left third finger condition. CONCLUSION OF LAW The criteria are met for withdrawal of the claims for higher initial ratings for tinnitus and allergic rhinitis, and service connection for a left hand condition and left third finger condition. 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 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. Prior to the promulgation of a decision in this case, the Veteran submitted a January 2016 written statement indicating his intent to withdraw his appeals for higher initial ratings for tinnitus and allergic rhinitis, and his claims for service connection for a left hand condition and left third finger condition. Therefore, a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to the above-listed issues. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). Accordingly, the Board does not have jurisdiction to review the appeal for these issues, and they are dismissed. ORDER The appeal for an initial rating higher than 10 percent for tinnitus is dismissed. The appeal for an initial compensable rating for allergic rhinitis is dismissed. The appeal for service connection for a left hand condition is dismissed. The appeal for service connection for a left third finger condition is dismissed. REMAND With respect to the remaining claims on appeal, additional development is necessary before they can be adjudicated on the merits. In a January 2016 statement, the Veteran indicated that his service-connected conditions had worsened since his last VA examinations. For his heart condition, the last VA examination was May 2010. For his other claims, he was examined in May 2009. The record contains little additional evidence with which to evaluate these conditions under VA's rating schedule. Therefore, new examinations must be scheduled. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). As to his remaining service connection claim for bilateral otitis externa, the Veteran's March 2009 VA examination noted no external ear problems, and no diagnosis was rendered. However, private records from September 2013 reflect complaints of left ear pain and findings of bilateral ear erythema. In light of these new findings, an examination and opinion should be obtained to determine whether any current ear condition is etiologically related to service, or secondary to service-connected allergic rhinitis. As noted above, the Veteran's representative indicated that he now resides in China. Therefore, all examinations should be conducted in accordance with VA's Adjudication Procedure Manual, M21-1, Part III, Subpart iv, Chapter 3, Section A, Paragraph 1.c (Jurisdiction for Examination Requests for Foreign Resident Beneficiaries). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner (in accordance with the provisions of M21-1, Part III, Subpart iv, Chapter 3, Section A, Paragraph 1.c) to determine the current severity of his status post myocardial infarction. All indicated tests and studies should be completed. The examiner should include a discussion of the associated symptoms, including, but not limited to, dyspnea, fatigue, angina, dizziness, syncope, left ventricular dysfunction, and/or congestive heart failure, if any. If evidence of congestive heart failure is found, the examiner is asked to discuss the frequency and severity of this condition (i.e., chronic or acute (if acute, how many times in the past year)). The examiner is also asked to discuss the Veteran's heart workload in terms of ejection fraction and METs. If a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner (in accordance with the provisions of M21-1, Part III, Subpart iv, Chapter 3, Section A, Paragraph 1.c) to determine the current severity of his left shoulder tendonitis and arthritis. All indicated tests and studies should be completed. The examiner should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing, as well as the necessary findings to evaluate functional loss during flare-ups. If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Schedule the Veteran for a VA examination with an appropriate examiner (in accordance with the provisions of M21-1, Part III, Subpart iv, Chapter 3, Section A, Paragraph 1.c) to determine the current severity of his left hip strain. All indicated tests and studies should be completed. The examiner should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing, as well as the necessary findings to evaluate functional loss during flare-ups. If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Schedule the Veteran for a VA examination with an appropriate examiner (in accordance with the provisions of M21-1, Part III, Subpart iv, Chapter 3, Section A, Paragraph 1.c) to determine the current severity of his lower back degenerative changes. All indicated tests and studies should be completed. The examiner should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing, as well as the necessary findings to evaluate functional loss during flare-ups. The examiner should also indicate whether there is any neurologic impairment associated with the Veteran's lower back degenerative changes, and indicate the duration of bed rest prescribed by a physician for incapacitating episodes, if any. If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 5. Schedule the Veteran for a VA examination with an appropriate examiner (in accordance with the provisions of M21-1, Part III, Subpart iv, Chapter 3, Section A, Paragraph 1.c) to determine the nature and etiology of any current ear disease. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed. The examiner should also take a complete history from the Veteran, and all indicated tests and studies should be completed. The examiner should then address the following: a) What are the currently diagnosed left, right, or bilateral ear conditions? b) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) that the diagnosed condition is etiologically related to service? c) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) caused by the Veteran's allergic rhinitis? d) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) aggravated by the Veteran's allergic rhinitis? The term "aggravation" in the above context refers to a permanent worsening of the ear conditions, as opposed to temporary flare-ups or increases with a return to a baseline level of disability. Although the examiner should review the claims file, his/her attention is directed to a diagnosis of left otitis externa in July 1997 and a report of right ear pain in February 1998, as well as normal findings on service examinations in May 1998, January 2008, and November 2008, and no additional history of ear trouble. The examiner must provide a complete explanation for the opinion, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must so state. However, an explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 6. After completion of the above, readjudicate the Veteran's claims. For any claim not granted to the Veteran's satisfaction, issue a supplemental statement of the case (SSOC) to him and his representative and allow an appropriate time for a response before returning the claims 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 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs