Citation Nr: 1804362	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  10-46 144	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective from January 15, 2016.

2.  Entitlement to an evaluation in excess of 10 percent for right shoulder rheumatoid arthritis effective from January 15, 2016.

3.  Entitlement to an evaluation in excess of 10 percent for left shoulder rheumatoid arthritis effective from January 15, 2016.

4.  Entitlement to an evaluation in excess of 10 percent for right ankle rheumatoid arthritis effective from January 15, 2016.

5.  Entitlement to an evaluation in excess of 10 percent for left ankle rheumatoid arthritis effective from January 15, 2016.

6.  Entitlement to an evaluation in excess of 10 percent for right hip rheumatoid arthritis effective from January 15, 2016.

7.  Entitlement to an evaluation in excess of 10 percent for left hip rheumatoid arthritis effective from January 15, 2016.

 8.  Entitlement to a compensable evaluation for service-connected rheumatoid arthritis prior to January 30, 2012, and in excess of 20 percent beginning from January 30, 2012.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Trickey, Associate Counsel


INTRODUCTION

The Veteran had active duty service from January 1969 to April 1969. 

These matters originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina.  In September 2016, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development.

The issues of entitlement to a compensable disability rating for service-connected rheumatoid arthritis prior to January 30, 2012, and in excess of 20 percent beginning from January 30, 2012 and entitlement to a disability evaluation in excess of 10 percent, effective from January 15, 2016, for rheumatoid arthritis of the bilateral hips and ankles are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT

1.  In written and signed correspondence dated September 2017, the Veteran, through his representative, indicated his desire to withdraw the appeal as to entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective from January 15, 2016.

2.  In written and signed correspondence dated September 2017, the Veteran, through his representative, indicated his desire to withdraw the appeal as to entitlement to an evaluation in excess of 10 percent for right shoulder rheumatoid arthritis effective from January 15, 2016.

3.  In written and signed correspondence dated September 2017, the Veteran, through his representative, indicated his desire to withdraw the appeal as to entitlement to an evaluation in excess of 10 percent for left shoulder rheumatoid arthritis effective from January 15, 2016.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective from January 15, 2016 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 the issue of entitlement to entitlement to an increased disability evaluation in excess of 10 percent for right shoulder rheumatoid arthritis effective from January 15, 2016 have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

3.  The criteria for withdrawal of the issue of entitlement to an increased disability evaluation in excess of 10 percent for left shoulder rheumatoid arthritis effective from January 15, 2016 disability 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

Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2017).

In the present case, in his September 2017correspondence to the Board, the Veteran, through his representative, clearly expressed his intent to withdraw his appeals as to entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective from January 15, 2016, entitlement to an evaluation in excess of 10 percent for right shoulder rheumatoid arthritis effective from January 15, 2016, and entitlement to an evaluation in excess of 10 percent for left shoulder rheumatoid arthritis effective from January 15, 2016.  

There remain no allegations of errors of fact or law for appellate consideration at this time and these appeals are dismissed.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


ORDER

The appeal as to entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective from January 15, 2016 is dismissed.

The appeal as to entitlement to an evaluation in excess of 10 percent for right shoulder rheumatoid arthritis effective from January 15, 2016 is dismissed.

The appeal as to entitlement to an evaluation in excess of 10 percent for left shoulder rheumatoid arthritis effective from January 15, 2016 is dismissed.


REMAND

Increased Evaluation - Ankles, Hips

As a threshold matter, there was not substantial compliance with the Board's September 2016 remand directives.  Upon remand from the Board in September 2016, VA examinations were conducted in April 2017.  That VA examination included evaluations of the Veteran's ankles and hips and contained opinions regarding the presence of rheumatoid arthritis.  The Board directed VA to obtain examinations for the Veteran's ankles and hips in regard to pain on both active and passive motion and in weight-bearing and nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016)

The April 2017 examinations show they do not include all the required testing pursuant to § 4.59 and Correia.  The VA examiner provided a statement that Correia was not indicated, however, the examiner provided no rationale or explanation for this cursory finding and the Board finds the April 2017 VA examinations do not conform to the Court's decision in Correia.  As such, new VA examinations are needed as there was not substantial with the Board's September 2016 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008).

Increased Evaluation - Rheumatoid Arthritis

In the Board's September 2016 remand, VA to obtain an examination and opinion with an assessment of the current nature of the Veteran's rheumatoid arthritis condition and residuals.  The April 2017 VA examiner found that the Veteran does not manifest rheumatoid arthritis.  Additionally, the Board notes that VA and private treatment records show negative results for rheumatoid arthritis.  See VA examination dated December 2005; Serology report dated May 2006; VA examination dated August 2009; VA treatment note dated February 2011.  

The Board notes that the Veteran's disability has been evaluated under Diagnostic Code 5002 from October 21, 2004 to January 15, 2016.  
Under DC 5002, rheumatoid (atrophic) arthritis will be rated either as an active process or on the basis of chronic residuals, and the higher rating will be assigned. Ratings for rheumatoid arthritis as an active process will not be combined with the residual ratings for limitation of motion or ankylosis.  38 C.F.R. § 4.71a, DC 5002 (2017).  In light of the uncertainty regarding the presence of active rheumatoid arthritis during the appellate period, the Board finds that an additional opinion is warranted.  See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006).  

Finally, the Board notes the most recent VA treatment records are from April 2017.  VA treatment records are constructively of record, and must be secured to allow for a fully informed appellate review.  Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment and evaluation records, including records from the Memphis VA Medical Center dated November 2012 to the present.

2.  Arrange for the Veteran to undergo a VA examination to evaluate the severity of his service-connected rheumatoid arthritis of the bilateral ankles and hips, including evaluation of residuals, such as limitation of motion or ankylosis, favorable or unfavorable, for each specific joints involved.   The examiner is asked to review all relevant records and conduct a clinical evaluation.  

Based on this review, the examiner is asked to provide an opinion on whether the Veteran's has had active rheumatoid arthritis at any time since August 2007.  

The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 
The examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition, including any associated neurologic manifestations.  Also, describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups.  IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.  If there is no pain and/or no limitation of function, such facts must be noted in the report.  If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 

The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred.

Please articulate the reasoning underpinning all medical findings.  That is, (1) identify what facts and information support those findings, and (2) explain how the facts and information justify the findings.  If the information requested in any question cannot be provided, explain why.  A report of the examination should be prepared and associated with the Veteran's VA claims file.

3.  After completing the above, plus any further action needed as a consequence of the development completed, readjudicate the appeal.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs