Citation Nr: 1801742 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-02 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicides. 3. Entitlement to special monthly compensation due to loss of use of hands or feet. REPRESENTATION Veteran represented by: James M. McElfresh, II, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to March 1967, including service in the Republic of Vietnam for which he was awarded the Purple Heart medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran appeared at a Board video conference hearing before the undersigned Veterans Law Judge with respect to these issues. A transcript of that hearing is in the claims file. In March 2017, the Board requested a Veterans Health Administration (VHA) medical opinion, which was provided in May 2017. The matter is now back before the Board. A separate decision is being issued on the question of entitlement to service connection for peripheral neuropathy in the right lower extremity and left lower extremity. A hearing was held on these issues before another Veterans Law Judge. The dismissed issue of entitlement to special monthly compensation due to loss of use of hands or feet has been raised once again by the Veteran in a December 2015 claim, 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 service connection for peripheral neuropathy in the left and right upper extremities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT In December 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal for entitlement to special monthly compensation due to loss of use of hands or feet, is requested. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to special monthly compensation due to loss of use of hands or feet, by the Veteran, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 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. § 7105 (2012). 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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, in his December 2015 video conference hearing, has withdrawn the appeal of entitlement to special monthly compensation due to loss of use of hands or feet. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. ORDER The claim of entitlement to special monthly compensation due to loss of use of hands or feet is dismissed. REMAND It appears that there are outstanding VA treatment records that potentially pertain to the Veteran's peripheral neuropathy claims. In particular, in a VA Form 21-4142a completed in June 2016, the Veteran reported treatment at the St. George VA Clinic and the Wahlen Veteran's Hospital in Salt Lake City, Utah. Moreover, in a submission dated in April 2016, the Veteran indicated that he began receiving treatment at the St. George VA Clinic around the year 2000. In a submission dated in July 2016, the Veteran again reiterated that he had additional medical records from the VALC in Salt Lake City, Utah and the VA outpatient clinic in St. George, Utah. In November 2016, the Veteran's representative indicated that the Veteran had yet to receive his VA treatment records from the St. George VA outpatient clinic. The Veteran's representative requested that the VA forward these records to the Veteran. It does not appear that the VA has attempted to obtain these identified records. Although the record contains treatment records from the St. George VA outpatient clinic beginning in 2002, it does not contain any records around the year 2000, as identified by the Veteran. The record also contains some treatment records from the Salt Lake City VA Medical Center, but it is unclear whether the record contains all of the records from the Wahlen Veteran's Hospital in Salt Lake City, Utah, as identified by the Veteran. Accordingly, the AOJ should specifically request any outstanding VA treatment records, as identified by the Veteran in his VA Form 21-4142a completed in June 2016, and in the submissions dated in April 2016, July 2016, and November 2016. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by the claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Finally, the Board acknowledges that the Veteran has also requested that these outstanding records be forwarded to him. See, e.g., November 2016 submission. Once any outstanding records have been associated with the Veteran's file, the Board will comply with any unresolved Privacy Act request. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his claimed peripheral neuropathy disabilities of the right and left upper extremities, to specifically include the treatment records from the St. George VA outpatient clinic beginning in the early 2000s and the Wahlen Veterans Hospital in Salt Lake City, Utah, as identified in the VA Form 21-4142a completed in June 2016 and in the submissions dated in April 2016, July 2016, and November 2016. Obtain and associate with the record all VA treatment records for the Veteran from any VA Medical Center where the Veteran has received treatment, along with records from all associated outpatient clinics. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claims, considering all evidence of record. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time must be allowed 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). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs