Citation Nr: 1808853	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  13-28 707	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus.

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left arm disorder.

3.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disorder.  

4.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disorder.  

5.  Entitlement to total disability rating for compensation based on individual unemployability (TDIU).  

6.  Entitlement to a disability rating in excess of 50 percent for the period prior to June 5, 2015, and 70 percent thereafter, for generalized anxiety disorder.

7.  Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD).

8.  Entitlement to a disability rating in excess of 10 percent for cervical spondylosis with degenerative disk disease.  

9.  Entitlement to a disability rating in excess of 10 percent for lumbar strain.  

10.  Entitlement to a disability rating in excess of 10 percent for a left knee disorder.  

11.  Entitlement to a disability rating in excess of 10 percent for a right knee disorder.  

REPRESENTATION

Appellant represented by:	Karl Kazmierczak, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Havelka, Counsel


INTRODUCTION

The Veteran served on active duty from May 1987 to May 1990 and from February 2003 to January 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of this testimony is associated with the claims file.  

The issues of involving increased disability ratings are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In August and September 2016, the Veteran withdrew his appeals for the reopening of the claims for service connection for: tinnitus, a left arm disorder, a left shoulder disorder, and a right shoulder disorder, as well as his claim for TDIU.  


CONCLUSION OF LAW

The criteria for withdrawal of the appeals regarding the reopening of the claims for service connection for tinnitus, a left arm disorder, a left shoulder disorder, and a right shoulder disorder, as well as his claim for TDIU 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 CONCLUSION

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 (2016).  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).

At the August 2016 hearing the Veteran withdrew his with respect to the issues of the reopening of the claims for service connection for tinnitus, a left arm disorder, a left shoulder disorder, and a right shoulder disorder.  In September 2016 the Veteran's attorney followed up with a letter which confirmed the withdrawal of the appeal with respect to those issues and also withdrew the appeal with respect to the issue of TDIU.  The Board understands that issues pertaining to entitlement to increased disability ratings remain on appeal and that the issue of TDIU is part and parcel to those claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  However, the evidence of record establishes that the Veteran has been employed throughout the entire appeal period, rendering the question of TDIU inapplicable.  There remains no allegation of error of fact or law for appellate consideration as to these issues.  Accordingly, the Board does not have jurisdiction to review these issues on appeal, and they must be dismissed.

ORDER

The appeal to reopen a claim of entitlement to service connection for tinnitus is dismissed.

The appeal to reopen a claim of entitlement to service connection for a left arm disorder is dismissed.

The appeal to reopen a claim of entitlement to service connection for a left shoulder disorder is dismissed.  

The appeal to reopen a claim of entitlement to service connection for a right shoulder disorder is dismissed.  

The appeal for entitlement to TDIU is dismissed.  

REMAND

The Veteran receives treatment at VA medical facilities for his service-connected disabilities.  At the August 2016 hearing the Veteran's attorney indicated that VA treatment records up through August 2016 had been submitted in support of the Veteran's claims.  

Review of the record does not show any VA treatment records subsequent to May 2015 have been placed in the record.  

Records generated by VA are constructively included within the record.  If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

The Veteran also indicated that he is also presently receiving private medical treatment for some of his service-connected orthopedic disabilities.  An attempt to obtain those records must also be obtained.  

Where the claimant asserts that a disability has increased in severity since the time of the last VA examination a new examination is required.  See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997).  At the August 2016 hearing the Veteran did provide testimony as to the symptoms he experienced from his service-connected disabilities.  The testimony did not specifically assert that the severity of the disabilities had increased since the last Compensation and Pension examinations, and the symptoms reported were consistent with those documented in the prior examination reports.  Accordingly, new examinations are not required as of this time, but may be necessary upon review of the medical records obtained.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be asked to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he had been treated for his service-connected knee, neck back, psychiatric disabilities and GERD since May 2015.  Subsequently, and after securing the proper authorizations where necessary, the AOJ should make arrangements in order to obtain all the records of treatment from all the sources listed by the veteran which are not already on file.  All information obtained should be made part of the file.  The AOJ should also obtain all the records of any treatment at VA facilities which are not already on file and should date from May 2015 to the present.  If any requested records are not available, such should be reflected in the record and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

If possible, to expedite this claim, the Veteran and his representative are asked to simply obtain these records themselves.

2.  If review of the medical records obtained indicates an increase in severity of any of the disabilities at issue, then the appropriate Compensation and Pension examinations should be ordered.  

3.  After the above development has been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the Veteran's claims must be readjudicated.  If any benefit on appeal remains denied, the Veteran and his attorney must be provided a supplemental statement of the case.  After an adequate opportunity to respond has been provided, the appeal must be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014).


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs