Citation Nr: 1817574 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-33 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable initial rating for myelodysplastic syndrome (MDS). 2. Entitlement to a compensable initial rating for erectile dysfunction. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and J. H. ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from July 1962 to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal of September 2009 (MDS) and July 2010 (erectile dysfunction) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2015, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of entitlement to a compensable initial rating for myelodysplastic syndrome (MDS) is addressed in the REMAND portion of the decision and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On the record, at the March 2015 Board hearing, the Veteran requested that the issue of entitlement to a compensable initial rating for erectile dysfunction be withdrawn from appeal. CONCLUSION OF LAW The criteria for the withdrawal of the issue of entitlement to a compensable initial rating for erectile dysfunction have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204 (b). Withdrawal may be made by the claimant or the claimant's authorized representative. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b)(1). Prior to promulgation of a decision in this case, the Veteran requested withdrawal of the issue of entitlement to a compensable initial rating for erectile dysfunction. The statement was made on the record during the March 2015 hearing, satisfying the pertinent criteria for withdrawal. There remains no allegation of error of fact or law for appellate consideration. As the Board does not have jurisdiction to review the issue of entitlement to a compensable initial rating for erectile dysfunction, it is dismissed. ORDER The issue of entitlement to a compensable initial rating for erectile dysfunction is dismissed. REMAND The Board finds that further development is necessary before a decision on the merits may be made relating to the issue of entitlement to a compensable initial rating for MDS remaining on appeal. The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a compensable initial rating for MDS. The Veteran was last provided a VA examination relating to his MDS in February 2010, over 8 years ago. During the March 2015 Board hearing the Veteran testified that his MDS manifests in debilitating fatigue. See March 2015 Board hearing transcript. The Veteran's testimony reflects that his MDS may have increased in severity since his last VA examination. In light of the Veteran's testimony, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The Board notes that the Veteran contends that his MDS should be rated as leukemia under Diagnostic Code 7703, not as anemia under Diagnostic Code 7700. In support of his contention the Veteran has submitted numerous letters from private treatment providers stating that MDS is more closely related to cancer, not anemia. Additionally, the Veteran has submitted medical articles stating that MDS is a form of cancer. In April 2010, the RO referred the claim to the Director, Compensation and Pension Services to determine whether the Veteran's MDS is more appropriately evaluated as bone marrow malignancy as opposed to being rated as a non-malignant process. In June 2010, the RO received a response from the Director, Radiation and Physical Exposures/Acting Director, Environmental Agents stating that the Veteran's MDS has not progressed to the point that it be considered in the same category as leukemia. Since the June 2010 response, the Veteran has submitted additional evidence suggesting that the Veteran's MDS should be considered leukemia. As such, the Board finds that the Veteran's claim should again be referred to the Director, Compensation and Pension Services to determine whether the Veteran's MDS is more appropriately evaluated as a bone marrow malignance as opposed to being rated as a non-malignant process, with consideration of the additional evidence. Additionally, at the March 2015 Board hearing the Veteran testified that he receives treatment for his MDS at the Miami, Florida VAMC. The most recent VA treatment records in the Veteran's claims file are from November 2012. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record. Further, during the March 2015 Board hearing the Veteran testified that he receives private treatment relating to his MDS at the Sylvester Comprehensive Cancer Center. On remand, the Veteran must be asked to complete authorization forms for release to VA of any private medical treatment records, and/or submit copies of any relevant records. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c) (1). Finally, at the March 2015 Board hearing the Veteran stated that he receives Social Security Administration (SSA) benefits. VA has a duty to assist a claimant in obtaining relevant and adequately identified records. Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010). Accordingly, on remand the RO must attempt to obtain records from the SSA. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records relevant to treatment of myelodysplastic syndrome, to include from the Miami, Florida VAMC from November 2012. 2. Contact the SSA and request all records relating to the Veteran's claim for disability benefits. Any negative response must be included in the claims file and the Veteran notified accordingly. 3. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disability at issue on appeal. The Board is specifically interested in records from the Sylvester Comprehensive Cancer Center. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. 4. Again refer the issue of entitlement to a compensable initial rating for MDS to the Director of Compensation Services to determine whether the Veteran's MDS is more appropriately evaluated as a bone marrow malignance as opposed to being rated as a non-malignant process, with consideration of additional evidence received since the prior June 2010 opinion received from the Director, Radiation and Physical Exposures/Acting Director, Environmental Agents. 5. After the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected MDS. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran's service-connected MDS. The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. 6. After completion of the above, review the expanded record, including the evidence entered since the statement of the case, and determine whether entitlement to a compensable initial rating for MDS may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs