Citation Nr: 1752548	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  13-32 921	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for hepatitis C, claimed as a liver condition.

2.  Entitlement to service connection for a muscle condition claimed as loss of muscle control in the lower extremities. 

3.  Entitlement to a compensable rating for hypertension. 


REPRESENTATION

Appellant represented by:	Elizabeth Lunn, Attorney



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. Vuong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 until August 1975. 

This matter comes to the Board of Veterans' Appeal (Board) on appeal from a June 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

In August 2017, the Veteran gave testimony at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript is of record.

As a final preliminary matter, the Board notes that in a January 2017 letter, Attorney Lunn submitted a written statement revoking her representation of the Veteran; however a motion showing good cause to withdraw services was not filed in accordance with  38 C.F.R. § 20.608(b)(2).  Accordingly, the Board continues to recognize Attorney Lunn as the Veteran's representative in this appeal.

The issue of entitlement to service connection for chronic fatigue has been raised by the record in a January 2008 VA 21-4138 and VA 21-526 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to a higher rating for hypertension and service connection for chronic muscle disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

In August 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal on the claim for service connection for hepatitis C.


CONCLUSION OF LAW

The criteria for the withdrawal of the substantive appeal with respect to hepatitis c are met.  38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 20.101, 20.202, 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. § 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 the Veteran or by his authorized representative.  38 C.F.R. § 20.204. 

In his August 2017 hearing testimony, the Veteran expressed a desire to withdraw the appeal on the claim of service connection claim for hepatitis C.  Therefore, there remains no allegation of error of fact or law for appellate consideration and the Board lacks jurisdiction to review the appeal.  Dismissal of the appeal is warranted.



ORDER

The appeal of the service connection claim for hepatitis C, claimed as a liver condition, is dismissed.


REMAND

The Veteran seeks service connection for a chronic muscle disorder.  Service treatment records contain complaints of weakness, dizziness, and episodes of syncope, constant sleepiness, and nausea.  See service treatment records from April 1975 and June 1975.

VA treatment records reflect complaints of muscle weakness/pain and chronic pain, and findings of fibromyalgia.  See treatment records from February 2010.  He has also been diagnosed intractable chronic pain of undetermined etiology, fibromyalgia and cramps/fasciculation syndrome.  The Veteran believes his current conditions may be related to his military service, and there is some evidence that he experienced similar symptoms in service.  The Veteran has not been afforded a VA examination.  Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required where there is evidence of a current disability; evidence establishing an in-service event; an indication that the current disability may be related to the in-service event; and insufficient evidence to decide the case.  Thus, a VA examination is needed. 

The Veteran also seeks a compensable rating for his service-connected hypertension.  At the August 2017 hearing, the Veteran testified that this disability had worsened in severity since the last VA examination in March 2011 as his blood pressure readings and medication had increased.  VA treatment records dated October 2012 reflect a systolic/diastolic reading of 174/100.  A remand is required for an examination to assess the current severity of his disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

In October 2012 VA treatment records, the Veteran reported that he is seen at the Triangle Primary Care Association as his primary care providers.  At the hearing, the Veteran reported treatment at WakeMed since 1987.

Furthermore, there potentially may be relevant Social Security Administration (SSA) documents outstanding.  A November 2006 a treatment record shows that the Veteran was in the process of seeking disability benefits from SSA.  These records may be relevant to the appeal.  The duty to assist requires VA to obtain potentially relevant SSA records.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); 38 C.F.R. § 3.159 (c)(2) (2017).

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran and request that he identify and give necessary authorization for any private doctor who has treated him for his claimed disabilities of hypertension and muscle condition.  Upon receipt of any necessary authorization, take appropriate action to contact the identified providers and request any outstanding, non-duplicative records.  

Also, obtain complete VA treatment records since May 2013.  If either the VA or private records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 

2.  Request SSA records in connection with the Veteran's application for disability benefits, to include any medical records upon which any SSA decisions were based.  If the records sought are not available, the claims file should be annotated to reflect such and the Veteran should be notified.

3.  The Veteran should be afforded an appropriate VA examination to determine the current severity of his service-connected hypertension.  The claims file should be reviewed by the examiner.  The examiner should address the current nature and severity of all manifestations of the Veteran's hypertension.

4.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed muscle condition.  The entire claims file must be reviewed by the examiner.  All appropriate diagnostic testing must be conducted. 

a) The examiner is to identify all current chronic muscle conditions found present on examination or upon review of the treatment records during the pendency of the appeal.

b) With respect to each disorder present during the period of this claim, the examiner should express an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated during service or is otherwise etiologically related to service?  

A complete rationale for the requested opinions should be provided.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so.

5.  Thereafter, readjudicate the appeal.  If the claim remains denied, issue a supplemental statement of the case and give the Veteran and his representative the opportunity to respond.  Then return the case to the Board.

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 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. §§ 5109B, 7112 (2014).




______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs