Citation Nr: 1752224 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-32 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a heart condition, claimed as idiopathic cardiomyopathy, as due to herbicide exposure or as secondary to diabetes mellitus. 3. Entitlement to a rating in excess of 10 percent for diabetes mellitus, type 2. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a video-conference Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2016. A transcript is of record. The issue of entitlement to service connection for a heart condition, claimed as idiopathic cardiomyopathy, as due to herbicide exposure or as secondary to diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On December 8, 2016, prior to the promulgation of a decision in the appeal, Veteran withdrew his appeal of the claims of entitlement to service connection for a left ankle disorder and for entitlement to a rating in excess of 10 percent for his diabetes mellitus. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran concerning the claims of entitlement to service connection for left ankle disorder and for entitlement to a rating in excess of 10 percent for his diabetes mellitus 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 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 (West 2016). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, at his hearing before the Board on December 8, 2016, the Veteran withdrew his appeal of the claims of entitlement to service connection for a left ankle disorder and for entitlement to a rating in excess of 10 percent for his diabetes mellitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. ORDER The appeal of claim of entitlement to service connection for a left ankle disorder is dismissed. The appeal of claim for a rating in excess of 10 percent for diabetes mellitus is dismissed. REMAND Unfortunately, a remand is required in this case. While the Board sincerely regrets the delay, the Veteran's claim for entitlement to service connection for a heart condition is remanded for further development in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. There appear to be outstanding treatment reports. During his 2016 Board hearing, the Veteran mentioned receiving additional medical treatment for his cardiac condition at Charlotte Cardiology Association. On remand, efforts should be undertaken to obtain these records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c)(2). In addition, in an August 2008 medical treatment note, the Veteran's private physician stated that the Veteran's idiopathic cardiomyopathy was possibly related to his diabetes. See August 2008 Charlotte Cardiology Associates Assessments. The Veteran also cited a medical article that asserts there may be a relationship between idiopathic cardiomyopathy and diabetes. See February 2011 Diabetes Care Case Study. On remand, the Veteran should be scheduled for an appropriate VA examination and medical opinions must be provided, as set forth below. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from Charlotte Cardiology Associates, dated from December 2010 forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the etiology of his claimed heart condition. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. The examiner must identify all current heart disorders found to be present. Specifically, the examiner should state whether or not the Veteran has ischemic heart disease. For any diagnosed non-ischemic heart disease, the examiner must provide opinions on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service, including exposure to herbicides? (b) Whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran's diabetes? (c) Whether it is at least as likely as not (50 percent or greater probability) that it has been aggravated, or worsened, by the Veteran's diabetes? In responding to (b) and (c), the examiner should consider the medical literature submitted by the Veteran in February 2011. Specifically, the Veteran asserts that there is medical literature available that tends to link the development of idiopathic cardiomyopathy with diabetes. See Diabetes and Idiopathic Cardiomyopathy, A Nationwide Case-Control Study. The examiner must also address and consider the August 22, 2008 medical treatment note, wherein James Roberts, M.D. stated that the Veteran's idiopathic cardiomyopathy is possibly caused by his diabetes; and the October 11, 2010 statement from Gary Henry, M.D., stating that the Veteran had cardiovascular complications caused by or aggravated by his diabetes. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Then, review the medical examination report to ensure that it adequately responds to the above instructions, including that it provides an adequate explanation in support of the opinions stated. If the report is deficient in this regard, return the case to the examiner for further review and discussion. 4. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016). Department of Veterans Affairs