Citation Nr: 1806492	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-29 397	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for an eye condition, to include as due to medication prescribed for service-connected ischemic heart disease.

2.  Entitlement to an initial compensable evaluation for irritant dermatitis prior to December 5, 2013, and an evaluation in excess of 30 percent thereafter.  

3.  Entitlement to an evaluation in excess of 60 percent for urinary incontinence, residual of prostate cancer.

(The issues of entitlement to annual clothing allowance and whether the amount of the retroactive payment awarded to the Veteran based on a rating decision dated in August 24, 2011, was proper are addressed in separate decisions).


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to September 1971.

This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 and October 2013 decision by the Ratings Office (RO) in New York, New York.

The Veteran testified at a hearing before the undersigned in March 2016.  The transcript of the hearing has been associated with the claims file.  

In a July 2015 rating decision, the RO increased the evaluation of the Veteran's irritant dermatitis from noncompensable to 30 percent disabling, effective December 5, 2013.  As the increases do not represent the maximum rating available for the condition, the Veteran's claims for higher evaluations remain in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

The issues of entitlement to service connection for an eye condition and increased ratings for irritant dermatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The appellant withdrew the appeal of the denial of an evaluation in excess of 60 percent for urinary incontinence, residual of prostate cancer.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the appellant with respect to the issue of an evaluation in excess of 60 percent for urinary incontinence, residual of prostate cancer have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

At the hearing before the undersigned in March 2016, the appellant expressed his desire to withdraw his appeal of the issue of entitlement to an evaluation in excess of 60 percent for urinary incontinence, residual of prostate cancer.  The Board acknowledges, except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204 (b)(1).  Here, the withdrawal was made on the record at a hearing before the undersigned.  In addition, the testimony was later reduced to writing, in the form of a transcript, and this transcript was associated with the claims file.  Hence, there remains no allegations of errors of fact or law for appellate consideration with respect to this issue and it must be dismissed.

ORDER

The appeal of the issue of entitlement to an evaluation in excess of 60 percent for urinary incontinence, residual of prostate cancer, is dismissed.


REMAND

Additional development is needed prior to adjudication of the claims of service connection for an eye condition and increased ratings for irritant dermatitis.

The record includes a letter from Dr. M.T., dated in December 2013.  The letter indicates that the Veteran has been under Dr. M.T.'s care since March 1999.  Also of record are additional letters and prescriptions from Dr. M.T. dated since December 2009 and a February 2013 VA treatment note indicating that the Veteran reports treatment from a private dermatologist.  However, treatment records regarding the Veteran from Dr. M.T., dated since December 2009, have not been obtained and associated with the claims file.

In addition, the record reveals letters from Dr. R.C.; however, treatment records regarding the Veteran have not been obtained from Dr. R.C.  

As such, the claims must be remanded for attempts to be made to obtain complete treatment records regarding the Veteran from Drs. M.T. and R.C., after obtaining any necessary authorization from the Veteran.  See 38 C.F.R. § 3.159.

The Veteran receives consistent treatment from VA.  However, VA treatment records regarding the Veteran dated since October 2015 have not been obtained and associated with the claims file.  On remand, attempts must be made to obtain and associate with the claims file VA treatment records regarding the Veteran dated since October 2015.  Id.

The Veteran testified at the hearing that medication used to treat his service-connected heart disability interfered with his vision.  Although he also testified that the problem appears to have resolved, he claims he did experience the problems during the appeal period.  

A February 2001 treatment note indicates that the Veteran was prescribed amiodarone.  It was noted that the Veteran had a referral to the eye clinic.  In a June 2001 eye clinic follow up examination it was reported that the Veteran was referred by his primary care provider secondary to being on amiodarone since 1999.  VA treatment records indicate that the Veteran was still prescribed amiodarone in June 2003.  In October 2004 and February 2005 amiodarone was listed in the Veteran's medications.  In August 2005 the Veteran was noted to have stopped amiodarone.  In February 2007 the Veteran was noted to have eye deposits for which amiodarone was stopped.  In a May 2013 VA eye treatment note the Veteran reported that he was currently taking amiodarone.  

The Veteran was afforded a VA eye examination in October 2012.  The examiner noted that amiodarone was not used recently by the Veteran.  However, no opinion was rendered regarding whether Veteran's treatment with amiodarone, due to the Veteran's service-connected heart disability, caused or aggravated the Veteran's eye disorder at any time during the appeal period.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  As the October 2012 examination is inadequate, the Board will remand the claim.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran was most recently afforded an examination with regard to his irritant dermatitis in October 2013.  At that time a VA medical opinion was obtained regarding whether the Veteran's dermatitis was associated with his urinary incontinence.  It was noted that the opinion rendered was noted to be based upon September 2013 outpatient notes.  However, the extent of the Veteran's symptoms was not discussed.  As such, the examination is not adequate and the issue must be remanded for the Veteran to be afforded another VA examination.  See 38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  Attempt to obtain and associate with the claims all VA treatment records regarding the Veteran dated since October 2015. 

2.  After obtaining any necessary authorization, attempt to obtain and associate with the claims file complete treatment records regarding the Veteran from Drs. M.T. and R.C.  Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file.

3.  Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any eye disorder found to be present.  The claims folder should be made available to the examiner for review.  All indicated studies should be performed, and all findings should be reported in detail.  

The examiner should address the following: 

Is it at least as likely as not that medication prescribed to treat the Veteran's service-connected heart disability, to include amiodarone, caused or aggravated any currently diagnosed eye disorder found at any time during the appeal period (i.e., since September 2012).

The examiner is informed that aggravation here is defined as any increase in disability.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 

In rendering an opinion, the examiner should consider, and discuss as necessary, on the prior VA medical opinion.  Complete rationale must be provided for all opinions.  If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

4.  Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected irritant dermatitis.  The claims folder and copies of all pertinent records should be made available to the examiner.  All indicated tests should be performed.  The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. 

5.  Thereafter, readjudicate the Veteran's claims.  If the benefits sought on appeal are not granted, issue the Veteran a supplemental statement of the case and provide the Veteran an opportunity to respond.

The appellant has the right to submit additional evidence and argument on the 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 (2012).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs