Citation Nr: 18141272 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-44 178 DATE: October 10, 2018 ORDER Entitlement to service connection for bilateral wrist arthritis is dismissed. REMANDED Whether new and material evidence was received to reopen the claim of entitlement to service connection for bilateral hearing loss is remanded. Whether new and material evidence was received to reopen the claim of entitlement to service connection for a respiratory condition, including as due to undiagnosed illness, is remanded. Entitlement to service connection for joint pain, left arm, including as due to undiagnosed illness, is remanded. Entitlement to service connection for joint pain, right arm, including as due to undiagnosed illness, is remanded. Entitlement to service connection for skin symptoms, including as due to undiagnosed illness, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to an initial rating in excess of 10 percent for the service-connected left ankle disability is remanded. FINDING OF FACT In July 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s representative that a withdrawal was requested for the issue of entitlement to service connection for bilateral wrist arthritis. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to service connection for bilateral wrist arthritis are 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 Service connection for Bilateral Wrist Arthritis 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b). In July 2018, the Veteran’s representative submitted a written statement indicating withdrawal of the issue of service connection for bilateral wrist arthritis. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran’s appeal and the issue must be dismissed. REASONS FOR REMAND Service Connection Claims The Veteran is seeking to reopen the claims for service connection for bilateral hearing loss and a respiratory condition, and to establish service connection for joint pain in his arms, for a skin disorder, and for headaches. He contends his hearing loss is due to in-service noise exposure. The remaining claims are claimed as incurred during his overseas service in Kuwait, to include as due to undiagnosed illness under 38 C.F.R. § 3.317. The claims were denied in August 2014 following the Veteran’s failure to report to scheduled VA examinations. The record before the Board does not include any exam notification letter sent to the Veteran. The file includes an internal record showing he was scheduled for a hearing loss examination and a Gulf War General Medical Examination. This record suggests the examinations were scheduled on or around July 29, 2014, and cancelled on August 22, 2014 due to the Veteran’s failure to appear. The record also includes an envelope indicating mail was returned in July 2014 due to insufficient address. Thus, there is some indication in the file that the Regional Office did not have an accurate address for the Veteran at the time the missed examinations were scheduled. In July 2018, the Veteran’s representative submitted a statement on his behalf, which indicates he “adamantly contends that he did not receive notice of these exams.” The statement also indicates he is more than willing to report for the examinations needed to decide these claims and requested that they be rescheduled. Thus, the record does not include any indication of a notice letter sent to the Veteran regarding the missed VA examinations, but does include an indication that the RO had an improper address at the time, such that if any examination letter was sent, it may not have been received. Further, the Veteran reports that he never received notice of the previously scheduled examinations and has indicated his willingness to appear. For these reasons, the Board is remanding the service connection claims in order for the RO to reschedule the VA examinations. The Board does recognize that the claims related to bilateral hearing loss and a respiratory disorder are claims to reopen, which do not require VA examination until evidence is submitted to reopen. 38 C.F.R. § 3.159(c)(4)(iii) (2017). However, in this case, the RO decided to afford the Veteran such an examination with regard to the hearing loss and respiratory claims; thus, they were obligated to properly notify him. Left Ankle Disability Rating The Veteran was afforded a VA examination of his left ankle in March 2012, more than six years ago. The clinical records in the Veteran’s claims file since then are limited; however, a March 2014 private report following x-ray shows the presence of degenerative joint disease in the left ankle, as well as an assessment of left ankle instability. The 2012 VA examination report referenced normal x-ray findings and noted there was no joint instability. Thus, it appears the 2012 VA examination report may not represent the current severity of the left ankle disability. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity of his service-connected left ankle disability. Records The Veteran’s claims file includes VA treatment records from various VA healthcare facilities through January 29, 2014. A remand is required in order for the RO to associate VA treatment records since that date with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 29, 2014, to the present. The record shows he has moved several times during the pendency of this claim, so records should be obtained from any VA facility from which the Veteran received treatment for the claimed disabilities. 2. Reschedule the previously scheduled VA bilateral hearing loss and Gulf War general medical examinations. The examiner(s) must opine whether the claimed disabilities are at least as likely as not related to an in-service injury or disease. In particular, the Veteran claims hearing loss due to in-service noise exposure, and claims the respiratory condition, joint pain in his arms, skin disorder, and headaches to have been incurred in service during his tour in Kuwait. He claims symptoms having initiated during that tour of duty, as well as claims his respiratory condition, joint pain in his arms, skin disorder, and headaches are all part of undiagnosed illness associated with Gulf War service. His contentions are summarized in the July 2018 brief submitted by his representative. All notice of the examination(s) should be placed within the record before the Board. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left ankle disability alone and discuss the effect of the left ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel