Citation Nr: 1804233	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  00-17 182	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected right ankle condition.

2.  Entitlement to service connection for a right knee disability, to include a secondary to the service-connected right ankle disability.

3.  Entitlement to service connection for right wrist disability, to include a secondary to service-connected residuals of a fracture to the right second metacarpal.

4.  Entitlement to service connection for gout.

5.  Entitlement to an increased evaluation for residuals of right second metacarpal currently rated as 10 percent disabling.

6.  Entitlement to an increased evaluation for residuals of right ankle dislocation and sprain/fracture deformity of right tibia rated as 20 percent disabling prior to May 26, 2006, and 30 percent thereafter.

7.  Entitlement to special monthly compensation (SMC) based on loss of use of right hand.

8.  Entitlement to special monthly compensation (SMC) based on loss of use of right foot.

9.  Entitlement to special monthly compensation (SMC) based on need for regular aid and attendance of another or being housebound.

10.  Entitlement to a total disability rating based on individual unemployability (TDIU).

11.  Entitlement to an annual clothing allowance.


REPRESENTATION

Appellant represented by:	Fiatupu Titialii, One Time Representative


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

D. M. Donahue Boushehri, Counsel 


INTRODUCTION

The Veteran served on active duty from April 1978 to April 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 1999 and June 2000 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, that respectively declined to reopen a claim of entitlement to service connection for a lumbosacral spine disorder secondary to a service-connected right ankle disability, denied claims for increased ratings for both the residuals of a fracture of the right index finger and for the residuals of a right ankle injury, and denied a claim of entitlement to an annual clothing allowance.  The matter also comes to the Board on appeal from a November 2003 rating decision that denied service connection for gout, and an October 2008 rating decision that declined to reopen the Veteran's previously denied claims of entitlement to service connection for a right knee disability and that denied service connection for a right wrist disability.

In an August 2003 decision, the Board, in pertinent part, denied the Veteran's application to reopen the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected right ankle disability, and his claims for increased ratings for right index finger and right ankle disabilities.  The Board remanded the claim for entitlement to a clothing allowance.  The Veteran appealed the decision denying the claims to the United States Court of Appeals for Veterans Claims (Court).  In a June 2004 Order, the Court remanded the claims to the Board for readjudication in accordance with a Joint Motion for Remand.  In February 2005, the Board remanded the claims for additional development.

In August 2011, the Board reopened and remanded the claim for service connection for a lumbar spine disability and remanded the claims for increased ratings for the right index finger and right ankle disabilities.  The Board also remanded newly certified appeals seeking to reopen claims for service connection for bilateral knee disabilities, claims for service connection for a right wrist disability and gout, a claim for TDIU, and the claim for a clothing allowance.  In a separate August 2011 Board decision, the Board remanded claims for special monthly compensation (SMC) based on loss of use of the hand and foot and SMC based on the need for aid and attendance.  In a May 2015 decision, the Board again remanded the claims for additional adjudication.  In a separate May 2015 decision, the Board reopened a claim for service connection for a right knee disability and remanded the claim, and remanded the claims for service connection for a right wrist disorder and gout.  Subsequently, the Veteran's multiple claims were merged into a single case. 

The Veteran testified before Veterans Law Judge (VLJ) Keller on the matters addressed herein in December 2002.  A transcript of that hearing is of record.  Since the August 2011 Board remand, VLJ Keller retired.  The Board notified the Veteran in January 2015 of VLJ Keller's retirement and offered him the opportunity to present testimony before another VLJ.  In March 2015, the Veteran declined to appear for a second hearing and indicated his desire for the Board to adjudicate his claims.

The issues of entitlement to service connection for a right knee and lumbar spine disabilities; entitlement to increased disability ratings for right second metacarpal (right index finger) and right ankle dislocation and sprain/fracture deformity of right tibia (right ankle); entitlement to SMC for loss of use of the right hand and right foot, and SMC based on regular aid and attendance; entitlement to an annual clothing allowance; and, entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In a September 2016 letter, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal as to the issues of entitlement to service connection for gout and right wrist pain is requested.


	



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal of the issue of entitlement to service connection for gout by the Veteran have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for withdrawal of an appeal of the issue of entitlement to service connection for right wrist pain 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 FINDINGS AND CONCLUSIONS

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 appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran has withdrawn this appeal of the issues of entitlement to service connection for gout and right wrist pain and, 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 as to these issues and it is dismissed.


ORDER

Entitlement to service connection for right wrist disability, to include a secondary to service-connected residuals of a fracture to the right second metacarpal, is dismissed.

Entitlement to service connection for gout is dismissed.


REMAND

In this case, the Board notes that in a letter dated in July 2011, the Veteran's representative reported he had received treatment at Tripler Army Medical Center since 2011.  However, the only treatment records in the file dated during that time are VA treatment records from VA Medical Centers in Hawaii and Washington.  As it is clear there are outstanding treatment records relevant to the Veteran's claims, the Board finds a remand is necessary.

During a February 2016 VA examination, the Veteran reported he started collecting Social Security Administration (SSA) disability benefits four to five months ago.  As the SSA records may be relevant to the increased rating claim on appeal, the RO should take steps to obtain those records.  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any private medical care providers that have treated him for claimed disabilities since 2011, to include any treatment at Tripler Army Medical Center.  Make arrangements to obtain all records that he adequately identifies and provides authorization to obtain.  If efforts to obtain any records are unsuccessful notify the Veteran and indicate what further steps VA will make concerning his claims. 

2.  Obtain from SSA all of the records related to the Veteran's claim for disability benefits, including medical records and copies of any decisions or adjudication, and associate them with the claims folder.

3.  Thereafter, undertake any additional development and readjudicate the Veteran's claims.  If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).




______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs