Citation Nr: 1807188	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-14 621	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to special monthly compensation (SMC) for loss of use of a kidney.

2.  Entitlement to service connection for a bilateral foot disability.

3.  Entitlement to a rating in excess of 60 percent for diabetic nephropathy with hypertension.

4.  Entitlement to a rating in excess of 40 percent for diabetes mellitus.

5.  Entitlement to an initial compensable rating for bilateral diabetic retinopathy with diabetic macular edema for the period prior to November 16, 2016.

6.  Entitlement to an initial rating in excess of 10 percent for bilateral diabetic retinopathy with diabetic macular edema for the period since November 16, 2016.

7.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity.

8.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, Veteran's wife


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from June 1987 to March 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and December 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In the December 2016 rating decision, the RO granted a separate 10 percent disability rating for the Veteran's bilateral diabetic retinopathy with diabetic macular edema disability, effective November 16, 2016.  Notably, the Veteran's diabetic retinopathy had previously been rated as part of the diabetic process.

The Board notes that the increase from 0 to 10 percent for the bilateral diabetic retinopathy with diabetic macular edema did not constitute a full grant of the benefits sought.  Accordingly, the issue of entitlement to an initial rating in excess of 10 percent for bilateral diabetic retinopathy with diabetic macular edema for the period since November 16, 2016 remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

In July 2017 the Veteran testified at a hearing in front of the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claim file.

Parenthetically, the Board also notes that a July 2017 rating decision granted entitlement to a total disability rating based on individual unemployability (TDIU), effective May 5, 2017.  Accordingly, this issue is not before the Board.

The issues of entitlement to a rating in excess of 60 percent for diabetic nephropathy with hypertension, a rating in excess of 40 percent for diabetes mellitus, an initial compensable rating for bilateral diabetic retinopathy for the period prior to November 16, 2016, an initial rating in excess of 10 percent for bilateral diabetic retinopathy for the period since November 16, 2016 and initial ratings in excess of 10 percent for peripheral neuropathy of the left and right upper extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

On July 11, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeals for entitlement to SMC for loss of use of a kidney and entitlement to service connection for a bilateral foot disability was requested.






CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to an SMC for loss of use of a kidney 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 by the Veteran as to the issue of entitlement to service connection for a bilateral foot 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 FINDING 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 and his authorized representative indicated in the Veteran's July 2017 hearing that the Veteran wished to withdraw his appeal as to the issues of entitlement to SMC for loss of use of a kidney and entitlement to service connection for a bilateral foot disability.  The transcript of that hearing is on file.  Therefore, the Veteran has withdrawn his appeal as to these issues, 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 they are dismissed.



ORDER

The appeal of entitlement to an SMC for loss of use of a kidney is dismissed.

The appeal of entitlement to service connection for a bilateral foot disability is dismissed.


REMAND

The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. 

Notably the last VA examinations for his diabetic retinopathy, diabetes mellitus, and diabetic nephropathy with hypertension disabilities took place in November 2016 while the Veteran's last examination for his peripheral neuropathy disabilities took place in December 2016.  

However, at his July 2017 Board hearing, the Veteran indicated that his service-connected disabilities had worsened since his last VA examinations.  Notably, the Veteran testified that he was in need of a kidney transplant and subsequent treatment records submitted after the July 2017 Board hearing indicate that he has been accepted for a kidney transplant.  Additionally, at his July 2017 hearing, the Board testified that he had lost 30 pounds since his most recent VA examination for diabetes mellitus while his peripheral neuropathy had "gotten much worse" since his last VA examination as he could no longer feel his feet most of the time.

Regarding his diabetic retinopathy, the Veteran testified that since his last VA examination he had undergone eye dye tests which included laser eye treatment.

Given that the Veteran indicated that his service-connected symptoms had worsened and he appears to be receiving continued treatment for these disabilities, the Board is of the opinion that new VA examinations would be probative.  

Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). 

Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected diabetic nephropathy with hypertension, diabetes mellitus, bilateral diabetic retinopathy and peripheral neuropathy of the left and right upper extremities disabilities, contemporaneous examinations are warranted, with findings responsive to the applicable rating criteria.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous").

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  Theses records should specifically include any treatment regarding a kidney transplant.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

2.  After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examinations before appropriate physician(s) to determine the current level of severity of his service-connected diabetic nephropathy with hypertension, diabetes mellitus, bilateral diabetic retinopathy and peripheral neuropathy of the left and right upper extremities disabilities.  

The Veteran's claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with these examinations, and the examination reports should reflect review of these items.  All necessary tests and studies should be performed, and the examiner(s) should describe in detail all symptomatology associated with the Veteran's diabetic nephropathy with hypertension, diabetes mellitus, bilateral diabetic retinopathy and peripheral neuropathy of the left and right upper extremities disabilities.

The examiner(s) should also provide an opinion concerning the impact of the Veteran's service-connected diabetic nephropathy with hypertension, diabetes mellitus, bilateral diabetic retinopathy and peripheral neuropathy of the left and right upper extremities disabilities on his ability to work. 

3.  Thereafter, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.


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 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).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs