Citation Nr: 1802674 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-20 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a dental disorder. 2. Entitlement to service connection for a disorder characterized by chest pain, claimed as chronic obstructive pulmonary disease. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to a compensable initial rating for Eagle's syndrome. 5. Entitlement to a compensable initial rating for tinea cruris and pseudofolliculitis barbae REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 2005 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008, December 2009, and July 2011 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in New York City, New York. The Board previously remanded these matters in June 2016 for further development. The case has now been returned for appellate review. The issues of entitlement to service connection for a disorder characterized by chest pain, claimed as chronic obstructive pulmonary disease; entitlement to service connection for PTSD; entitlement to a compensable initial rating for Eagle's syndrome; and entitlement to a compensable initial rating for tinea cruris and pseudofolliculitis barbae are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On December 6, 2010, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to service connection for a dental disorder. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran pertaining to the issue of entitlement to service connection for a dental disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (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. § 7105 (2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017).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. 38 C.F.R. § 20.204. The Board previously remanded the issue of service connection for a dental disorder for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, upon remand, in a September 2017 deferred rating decision, it was noted that the Veteran withdrew the appeal of this issue in a December 6, 2010 statement, which was confirmed in a July 2011 letter from the RO. Both of these documents are of record. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. ORDER The appeal pertaining to the issue of entitlement to service connection for a dental disorder is dismissed. REMAND The Board previously remanded this case to schedule VA examinations addressing the issues of service connection for chest pain and PTSD as well as the issues of increased ratings for Eagle's syndrome and tinea cruris and pseudofolliculitis barbae. The Board also remanded the case to obtain VA treatment records and send the Veteran a letter that includes information on how to substantiate his claim of in-service military sexual trauma (MST). While VA treatment records were obtained and a letter was sent, the Veteran was not scheduled for VA examinations as directed. The record shows that a request for VA examinations was made to the VA Medical Center (VAMC) on March 8, 2017. A VAMC record showed that on March 27, 2017, the request was cancelled because the Veteran failed to respond. In a subsequent supplemental statement of the case, the AOJ noted that the Veteran was contacted by the VAMC to schedule a VA examination, but the Veteran failed to schedule an appointment. However, significantly, a copy of the letter from the VAMC to the Veteran is not of record and the address listed on the VAMC record differs from the mailing address listed on other documents addressed to the Veteran in the record. As such, based on the evidence of record, it is unclear whether the Veteran ever received such letter. Further, importantly, it does not appear that the VAMC gave the Veteran very much time to respond as it was less than 30 days from the request for the examination until its cancellation. Moreover, with respect to the Veteran's skin disorder, the Board directed the AOJ to schedule the examination with any cooperation required from the Veteran. However, it appears that the AOJ used this directive as requiring the Veteran to contact the VA for scheduling an examination. However, in a November 2017 brief, the Veteran's representative asserted that the Veteran should not be held liable to schedule examinations, only to attend any scheduled examinations. Thus, the Veteran's representative asserted that the Board's prior Remand orders were not followed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes that nothing in the regulations concerning the VA's duty to assist in providing examinations require the Veteran to schedule such appointment. As such, the Board agrees with the Veteran's representative that the AOJ did not comply with its prior remand directives. Accordingly, these issues must be returned to schedule the Veteran for such examinations. Further, the AOJ should ensure that notice of the scheduled examinations is sent to the Veteran's current address of record. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of any currently diagnosed respiratory or pulmonary disorders other than the asthma for which service connection has already been awarded. Ensure that notice of the scheduled examination is sent to the Veteran's current address of record. The electronic record should be made available to the examiner. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. The VA examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed respiratory or pulmonary disorders other than asthma had their onset during service, manifested to a compensable degree within a year of service separation, or are due to or the result of an in-service disease or injury. A complete rationale for any provided medical opinion is necessary. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disorder other than depression, for which service connection has already been awarded. Ensure that notice of the scheduled examination is sent to the Veteran's current address of record. The electronic record should be made available to the examiner. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. If PTSD is diagnosed, the examiner should indicate the stressor underlying it. In this regard, the examiner should determine whether there is evidence of behavior changes or other relevant changes following the claimed sexual assault; and opine as to whether that evidence indicates that the personal assault occurred. If the examiner determines that the evidence does indicate that the personal assault occurred, then the examiner should opine as to whether it is at least as likely as not that the Veteran has PTSD as a result of sexual assault. A complete rationale for any provided medical opinion is necessary. 3. Schedule the Veteran for an appropriate VA examination to address the nature and severity of the service-connected Eagle's syndrome. Ensure that notice of the scheduled examination is sent to the Veteran's current address of record. The electronic record should be provided to the examiner for review in connection with the examination. All indicated studies should be conducted, and all relevant clinical findings should be recorded in the examination report. The examiner must specifically address whether the Veteran has stricture or obstruction of the pharynx or nasopharynx; absence of soft palate; or paralysis of the soft palate with swallowing difficulty (nasal regurgitation) and speech impairment. 4. Schedule the Veteran for a VA dermatological examination to determine the current severity of the service-connected tinea cruris and pseudofolliculitis barbae. Ensure that notice of the scheduled examination is sent to the Veteran's current address of record. Schedule the examination, to the extent possible, during an active phase of his skin disorder. The electronic record must be provided to the examiner. The examiner is to elicit a history of the Veteran's skin disorders, including the type and frequency of the medications used to treat such. The examiner is also to conduct a relevant clinical examination and state what portion of the Veteran's body is affected by his skin disorders, to include both exposed and non-exposed areas. If the examination is conducted during a non-active stage of the skin disorders, the examiner is to estimate the portion of the body affected by the skin disorders during an active stage, based on the examination, to include the Veteran's reports. 5. Readjudicate the appeal. 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. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs