Citation Nr: 1800997	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  10-38 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for a right eye disorder.

2.  Entitlement to a neurological disorder manifesting as weakness on the left side.

3.  Entitlement to a higher initial disability rating (or evaluation) for thoracolumbar spine strain in excess of 20 percent.

4.  Entitlement to a higher (compensable) initial disability rating (or evaluation) for post-concussive chronic tension-type headaches.

5.  Entitlement to a higher initial disability rating (or evaluation) for posttraumatic stress disorder (PTSD) with symptoms of depression in excess of 30 percent.

6.  Entitlement to a higher initial disability rating (or evaluation) for gastroesophageal reflux disease (GERD), in excess of 0 percent (noncompensable) prior to March 10, 2009, and in excess of 10 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

E. Blowers, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 2004 to August 2005, and from July 2007 to March 2009.

This matter came before the Board of Veterans' Appeals (Board) on appeal from June 2009 and April 2010 rating decisions of the RO in Indianapolis, Indiana.  The Veteran testified from Indianapolis, Indiana, at an October 2017 Travel Board hearing before the undersigned Veterans Law Judge.  The hearing transcript has been associated with the record.  

The instant matter is a Veterans Benefits Management System (VBMS) appeal.  The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence.  The issues of service connection for a right eye disorder and higher initial disability ratings for headaches, PTSD, and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Per the Veteran's October 2017 Travel Board hearing testimony, and in writing in an October 2017 statement in support of claim, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the issues of service connection for a neurological disorder manifesting as weakness on the left side, and a higher initial disability rating for the service-connected thoracolumbar spine strain in excess of 20 percent.


CONCLUSIONS OF LAW

1.  The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for service connection for a neurological disorder manifesting as weakness on the left side.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for a higher initial disability rating for thoracolumbar spine strain in excess of 20 percent.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Withdrawal of Issues on Appeal

Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed.  A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing.  38 C.F.R. § 20.204.  Per the Veteran's October 2017 Travel Board hearing testimony, and in writing in an October 2017 statement in support of claim, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the issues of service connection for a neurological disorder manifesting as weakness on the left side, and a higher initial disability rating for the service-connected thoracolumbar spine strain in excess of 20 percent.

As the Veteran has withdrawn the appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration as to these issues.  See 38 U.S.C. § 7104 (2012).  Accordingly, the Board does not have jurisdiction to review these issues, and the issues of service connection for a neurological disorder manifesting as weakness on the left side and a higher initial disability rating for the service-connected thoracolumbar spine strain in excess of 20 percent will be dismissed.


ORDER

The appeal for service connection for a neurological disorder manifesting as weakness on the left side is dismissed.

The appeal for a higher initial disability rating for thoracolumbar spine strain in excess of 20 percent is dismissed.


REMAND

Service Connection for a Right Eye Disorder

VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017).  In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is 
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but 
(4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

During the course of this appeal, the Veteran has advanced having a right eye disorder caused by an in-service TBI (for which service connection has been established).  The Veteran received a VA general medical examination in May 2013.  At that time, the VA examiner answered affirmatively to the question, "is there an eye condition."  When asked to state the identified eye condition, the VA examiner wrote, "fatigue in the right eye."  No specific disorder appears to have been diagnosed, and no opinion was rendered as to whether the right-eye fatigue was related to the in-service TBI.  For these reasons, the Board finds remand for a VA eye examination to be warranted.

Higher Initial Disability Ratings

A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95.  When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

At the October 2017 Travel Board hearing, the Veteran testified that the symptoms of the service-connected headaches, PTSD, and GERD had worsened since the May 2013 VA general medical examination.  As such, the Board finds remand for new VA headache, PTSD, and GERD examinations to be warranted.

Outstanding Treatment Records 

VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues.  Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record.  Further, the AOJ should obtain any outstanding VA treatment records for the period from March 2017.

Accordingly, the issues of service connection for a right eye disorder and higher initial disability ratings for headaches, PTSD, and GERD are REMANDED for the following action:

1.  Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the Veteran's right eye, headaches, PTSD, and/or GERD.  Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the Veteran's right eye, headaches, PTSD, and/or GERD, not already of record, for incorporation into the record.  If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017).

2.  Associate with the record all VA treatment records pertaining to the treatment of the Veteran's right eye, headaches, PTSD, and/or GERD, not already of record, for the period from March 2017.

3.  Schedule the appropriate VA examinations.  The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination.  A detailed history of relevant symptoms should be obtained from the Veteran.  All indicated studies should be performed.  A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.  The examiners should provide the following opinions:

Right Eye

A)  Does the Veteran have a currently diagnosed right eye disorder?  If the VA examiner finds that the Veteran does not have a currently diagnosed right eye disorder, the VA examiner should opine as to the cause of the right eye fatigue noted in the May 2013 VA general medical examination.

B)  If the Veteran does have a currently diagnosed right eye disorder, is it at least as likely as not (50 percent or higher degree of probability) that the right eye disorder had its onset during a period of active service, including as due to the in-service TBI caused by exposure to an improvised explosive device (IED) while stationed in Iraq?

Headaches, PTSD, and GERD

The VA examiner should report the extent of the headache, mental health, and GERD symptomatology in accordance with VA rating criteria.

4.  Then, readjudicate the issues of service connection for a right eye disorder and higher initial disability ratings for headaches, PTSD, and GERD.  If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned 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 that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).





______________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs