Citation Nr: 18142881 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 09-45 075 DATE: October 17, 2018 ORDER Entitlement to service connection for color blindness is dismissed. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for a traumatic brain injury is dismissed. The issue of the propriety of the severance of service connection for dizziness is dismissed. Entitlement to an evaluation in excess of 10 percent for genital warts is dismissed. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for irritable bowel syndrome is remanded. Entitlement to service connection for Meniere’s disease is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a compensable evaluation for an eye injury is remanded. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder with major depressive disorder is remanded. Entitlement to a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the April 2018 hearing and a May 2018 statement, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw his appeal for the issues of entitlement to service connection for color blindness, whether new and material evidence has been submitted to reopen a claim for service connection for a traumatic brain injury, and the propriety of the severance of service connection for dizziness. 2. During the April 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he was satisfied with the 10 percent evaluation assigned for his service-connected genital warts. There is no remaining case or controversy as to that issue. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issues of entitlement to service connection for color blindness, whether new and material evidence has been submitted to reopen a claim for service connection for a traumatic brain injury, and the propriety of the severance of service connection for dizziness have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The claim of entitlement to an evaluation in excess of 10 percent for genital warts is dismissed. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1990 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Color Blindness, Traumatic Brain Injury, and Dizziness 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. During the April 2018 hearing and in a May 2018 statement, the Veteran indicated that he wanted to withdraw the appeal for the issues of entitlement to service connection for color blindness, whether new and material evidence has been submitted to reopen a claim for service connection for a traumatic brain injury, and the propriety of the severance of service connection for dizziness. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to those issue. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. Genital Warts During the April 2018 hearing, the Veteran indicated that he was content with the 10 percent evaluation assigned for his genital warts. See April 2018 hearing transcript at pg. 13. Thus, there is no remaining case or controversy with respect to the issue of entitlement to an evaluation in excess of 10 percent for genital warts. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review that issue, and it is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 The Board does acknowledge the Veteran’s claim that he should be assigned additional ratings for a cyst, as well as a growth in his scrotum. However, a June 2016 VA examiner indicated that the Veteran did not have neoplasms related to his genital warts. Nevertheless, he did have a moderately large spermatocele present. Thus, the VA examination report suggests that the Veteran may have a separate disorder, namely a spermatocele, which is not currently on appeal. The Veteran and his representative are advised that a claim for additional benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). REASONS FOR REMAND Irritable Bowel Syndrome, Fibromyalgia, Sleep Disorder, and Meniere’s Disease In a February 2013 rating decision, the Veteran was denied service connection for fibromyalgia, a sleep disorder, and irritable bowel syndrome. He was denied service connection for Meniere’s disease in a July 2013 rating decision. The Veteran submitted a notice of disagreement (NOD) with the February 2013 rating decision in a March 2012 statement. He also submitted an NOD with the July 2013 rating decision within the same month. A review of the record shows that a Statement of the Case (SOC) addressing these matters has not yet been issued. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary). Accordingly, on remand, an SOC must be issued in order to ensure due process. In remanding these issues, the Board notes that the Veteran has disagreed with more recent decisions denying other claims. However, it appears that the RO is actively processing those appeals, whereas these issues have had a NOD pending for over five years, thereby necessitating a remand. Headaches, PTSD, Eye Injury, and TDIU During the April 2018 hearing, the Veteran reported that his headaches began in service and have continued since then. He also reported that his headaches may be secondary to his service-connected PTSD. In a June 2013 VA medical opinion, the examiner found that the evidence did not show that the Veteran had an ongoing headache problem since service. The examiner noted that the Veteran himself had indicated that his headaches were unrelated to a motor vehicle accident which occurred in service and that a December 1991 service record of headaches was due to symptoms of gastroenteritis. Nevertheless, in light of the Veteran’s assertion that his headaches may be secondary to his service-connected PTSD, a remand is necessary to obtain an additional opinion. During the hearing, the Veteran also reported that his service-connected PTSD and eye injury had worsened. He reported that he had more frequent anxiety attacks and that he experienced pain and flash blindness in his eyes. Therefore, the Board finds that additional VA examinations are needed to ascertain the current severity and manifestations of the Veteran’s service-connected PTSD and eye injury. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board also notes that the rating criteria for evaluating eye disabilities were amended during the course of this appeal. The amended criteria apply only to claims received by VA on or after December 10, 2008. See 73 Fed. Reg. 66543 (Nov. 10, 2008) (codified at 38 C.F.R. §§ 4.75-4.79, Diagnostic Codes 6000-6091). The Veteran filed his claim in February 2008, and it appears that the RO initially adjudicated his claim and assigned an evaluation based upon the pre-amendment criteria. On remand, the AOJ should consider the case under the pre-amendment criteria. The Board further finds that the issue of entitlement to TDIU is intertwined with the issues being remanded. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should issue a Statement of the Case (SOC) to the Veteran and his representative addressing the issues of entitlement to service connection for fibromyalgia, a sleep disorder, irritable bowel syndrome, and Meniere’s disease. The Veteran and his representative must be advised of the time limit in which he may file a substantive appeal, if he so desires. 38 C.F.R. § 20.302 (b) (2017). These issues should only be returned to the Board for further appellate consideration if an appeal is properly perfected. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for headaches, PTSD, and his eyes. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any headaches that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has headaches that manifested in service or that are causally or etiologically related to his military service, to include any injury or symptomatology or injury therein. In rendering this opinion, the examiner should address the April 2018 hearing testimony wherein the Veteran reported that his headaches began in service, as well AS the December 1991 service treatment record which noted that the Veteran had reported having headaches. The examiner should also state whether it is at least as likely as not that the Veteran has headaches that were either caused by or permanently aggravated by the Veteran’s service-connected PTSD with major depressive disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After obtaining any outstanding records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD with major depressive disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran’s PTSD with major depressive disorder. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claim file, must be made available to the examiner for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected eye injury. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s eye injury under the General Rating Formula for Diagnostic Codes 6000-6009. The examiner should also report any impairment of central visual activity, impairment of visual fields, and impairment of muscle function. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claim file, must be made available to the examiner for review. 6. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 8. When readjudicating the claim for an increased evaluation for the service-connected eye injury, the AOJ should consider the pre-2008 amendment rating criteria for evaluating eye disabilities given the date of the claim. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel