Citation Nr: 1751074	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  10-00 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for diabetes mellitus.

3. Entitlement to service connection for tobacco and nicotine abuse.

4. Entitlement to service connection for myalgia.

5. Entitlement to service connection for myositis. 

6. Entitlement to service connection for vitamin B-complex deficiency.

7. Entitlement to service connection for dysthesthenia.

8. Entitlement to service connection for peripheral vascular disease (PVD), to include as due to herbicide exposure and secondary to PTSD.

9. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure.  

10.   Entitlement to an increased disability rating for ischemic heart disease, currently evaluated as 10 percent disabling prior to September 12, 2011, and as 60 percent disabling thereafter.  


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1965 to January 1969.

These matters come before the Board of Veterans' Appeals (Board) from February 2008 and September 2011 rating decisions by the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Louis, Missouri.  These matters were subsequently remanded by the Board in October 2015 for additional development, which has since been completed.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran's PVD, peripheral neuropathy, and ischemic heart disease claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

In multiple written statements and prior to the promulgation of a decision regarding these matters, the Veteran indicated that he wished to withdraw the psychiatric, diabetes mellitus, tobacco and nicotine abuse, myalgia, myositis, vitamin B-complex deficiency, and dysthesthenia claims currently pending before the Board; there are no questions of fact or law remaining for the Board to consider.


CONCLUSIONS OF LAW

1. The criteria for the withdrawal of the issue of whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability other than PTSD have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2. The criteria for the withdrawal of the issue of service connection for diabetes mellitus have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. 
§ 20.204 (2017).

3. The criteria for the withdrawal of the issue of service connection for tobacco and nicotine abuse have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

4. The criteria for the withdrawal of the issue of service connection for myalgia have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

5. The criteria for the withdrawal of the issue of service connection for myositis have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

6. The criteria for the withdrawal of the issue of service connection for vitamin B-complex deficiency have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

7. The criteria for the withdrawal of the issue of service connection for dysthesthenia have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. 38 U.S.C.A. § 7104 (West 2014).  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).  An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204 (2017).  A withdrawal of an appeal is effective when received.  38 C.F.R. 
§ 20.204(b) (3) (2017).

In multiple statements dated August and September 2016, the Veteran's representative indicated the Veteran's desire to pursue only the PVD, peripheral neuropathy, and ischemic heart disease claims currently pending before the Board.  See also Hearing Memorandum dated September 2017.  Said withdrawals were requested prior to the promulgation of a Board decision on these matters.  Accordingly, there are no allegations of error of fact or law with respect to these claims remaining for appellate consideration, and the Board does not have jurisdiction to further consider an appeal of these matters.

Briefly, the Board acknowledges that the Veteran's representative did not explicitly withdraw the existing psychiatric claim in the noted statements.  However, the Veteran clearly, and repeatedly, indicated his desire that only the PVD, peripheral neuropathy, and ischemic heart disease claims remain on appeal at this time.  As such, the Board construes the Veteran's statements as a request to withdraw the psychiatric claim in conjunction with the additionally withdrawn issues.  


ORDER

The appeal seeking to reopen a claim for service connection for an acquired psychiatric disability other than PTSD is dismissed.  

The appeal seeking entitlement to service connection for diabetes mellitus is dismissed.

The appeal seeking entitlement to service connection for tobacco and nicotine abuse is dismissed.

The appeal seeking entitlement to service connection for myalgia is dismissed.

The appeal seeking entitlement to service connection for myositis is dismissed.

The appeal seeking entitlement to service connection for vitamin B-complex deficiency is dismissed.

The appeal seeking entitlement to service connection for dysthesthenia is dismissed.


REMAND

Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's remaining claims.  




PVD and Peripheral Neuropathy Claims

The etiologies of the Veteran's claimed PVD and peripheral neuropathy disabilities were assessed during VA examinations in October 2012 and July 2016.  However, the Board finds these opinions to be inadequate for their failure to address the full scope of entitlement theories as presented by the Veteran and to provide adequate rationales in support of their conclusions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also article submitted in June 2007 pertaining to diseases related to Agent Orange exposure; representative's statement dated May 2006 (requesting consideration of all theories of entitlement, including presumptive and secondary, in this case); and "Cardiovascular Alterations and Autonomic Imbalance in an Experimental Model of Depression" dated January 2002 (assessing the relationship between psychiatric and cardiovascular conditions).  Thus the Board finds that new VA examinations must be obtained which address the possible impact of the Veteran's in-service herbicide exposure and service-connected PTSD on the claimed disabilities.   

Ischemic Heart Disease Claim

Similarly, the Board finds that the most recent July 2017 VA heart examination is inadequate for the purpose of assessing the current severity of the Veteran's ischemic heart disease.  In this regard, the Veteran's disability has been rated according to Diagnostic Code 7005, which accounts for such symptoms as dyspnea, fatigue, and angina.  38 C.F.R. § 4.130, Diagnostic Code 7005 (2017).  However, the VA examiner did not assess these factors in July 2017.  Further, the Board notes that unreliable METs results were obtained in July 2017 due to problems arising from a separate disability.  Thus on remand, an additional attempt to secure reliable results may be made.  

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with new VA examinations to assess the nature and etiology of the claimed PVD and peripheral neuropathy disabilities.  The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.  All pertinent symptomatology and findings must be reported in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.

The examiners should elicit a complete history from the Veteran.  It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

		a.  The PVD examiner must indicate the following:

i.  Whether the Veteran has demonstrated PVD at any time during the rating period on appeal;

ii.  If so, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service, to include in-service herbicide exposure.  

iii.  Additionally, indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's PVD was caused or aggravated by service-connected PTSD or the treatment thereof.

b.  The peripheral neuropathy examiner must indicate the following:

i.  Whether the Veteran has demonstrated peripheral neuropathy of the lower extremities at any time during the rating period on appeal;

ii.  If so, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service, to include in-service herbicide exposure.  
		
iii.  Further indicate whether the diagnosed peripheral neuropathy would be classified as "early onset."  

In formulating the opinions, the examiners are advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.

A detailed rationale supporting the examiner's opinion must be provided.  If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

2.  Schedule the Veteran for a new VA heart examination.  The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail in accordance with VA rating criteria per Diagnostic Code 7005. 

The examiner should provide, to the greatest extent possible, comprehensive information that addresses all components of the applicable rating criteria, to include an assessment of exercise capacity in terms of METs (metabolic equivalent); left ventricular function; any evidence of congestive heart failure; and any associated symptoms including dyspnea, fatigue, angina, dizziness, or syncope, and its frequency.  If the examiner is unable to obtain reliable METs results, he or she must clearly explain why this is so.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

3.  Readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an appropriate period for response.

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




______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs