Citation Nr: 18106951 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-28 414A DATE: June 1, 2018 ORDER Entitlement to service connection for polyarthritis of multiple joints is granted. Entitlement to service connection for hepatitis C is dismissed. REMANDED Entitlement to a compensable disability rating for endochondroma, pathological fracture, left 5th metacarpal, is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity neuropathy is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity neuropathy is remanded. FINDINGS OF FACT 1. The Veteran has experienced generalized joint pain related to polyarthritis during service and within the applicable presumptive period. 2. In April 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of entitlement to service connection for hepatitis C is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for polyarthritis of multiple joints are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for withdrawal of the appeal of service connection for hepatitis C by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1984 to June 1992. These issues are on appeal from a June 2010 rating decision. In an April 2018 statement, the Veteran’s representative waived the Veteran’s right to have the Agency of Original Jurisdiction (AOJ) review the new evidence added since the July 2014 Statement of the Case. The service connection claims on appeal have been characterized as new and material evidence claims by the AOJ. These claims were previously denied in an unappealed June 2006 rating decision. However, the evidence obtained since that last final decision includes service personnel records that are relevant to both claims, were available at the time of the prior rating decision, and their absence was through no fault on the part of the Veteran. Accordingly, the Board has recharacterized the claims as original service connection claims without the need for new and material evidence to reopen the claims. 38 C.F.R. § 3.156(c). Service Connection 1. Entitlement to service connection for polyarthritis of multiple joints. The Veteran contends that her current polyarthritis of multiple joints began in service and has continued since that time. The Board concludes that the Veteran’s polyarthritis of multiple joints was documented in service and manifested to a compensable degree in April 1993, during the applicable presumptive period. During service, the Veteran was seen on multiple occasions for joint pains. See, e.g., June 1987 treatment for back and neck pain. A June 1989 in-service medical opinion found that the Veteran’s current symptoms might develop into rheumatoid arthritis and that the Veteran should be followed closely over the next year. The Veteran’s March 1992 military separation examination documented generalized arthritic pain secondary to exposure to heavy metals. On her March 1992 Report of Medical History form, the Veteran checked the boxes to indicate she had “swollen or painful joints,” “foot trouble,” and “arthritis, rheumatism, or bursitis.” The Veteran’s active military service ended in June 1992. Within one year of her military discharge, the Veteran was diagnosed in April 1993 by the VA Medical Center (VAMC) with arthritis of an unknown etiology. No specific joint was specified, but the Veteran’s back, knees, hands, and feet were examined. Since filing her service connection claim in January 2010, the Veteran was diagnosed with polyarthritis in January 2010 by the VAMC. Service connection for polyarthritis of multiple joints is granted. 2. Entitlement to service connection for hepatitis C. 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. 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. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Following her August 2014 Substantive Appeal (on VA Form 9), the Veteran specifically withdrew the appeal of entitlement to service connection for hepatitis C in a statement dated in April 2015. She was informed in a May 2015 letter from the AOJ that no further action would be taken on her claim. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for endochondroma, pathological fracture, left 5th metacarpal, is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity neuropathy is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity neuropathy is remanded. In a February 2018 statement, the Veteran’s representative requested that the increased rating claims be remanded for the Veteran to be afforded recent VA examinations. The Veteran’s service-connected bilateral lower extremities neuropathy was last examined by VA in November 2014. The Veteran’s service-connected endochondroma, pathological fracture, left 5th metacarpal, was last examined by VA in March 2010. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these disabilities.   The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected endochondroma, pathological fracture, left 5th metacarpal. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the endochondroma, pathological fracture, left 5th metacarpal, alone and discuss the effect of the Veteran’s endochondroma, pathological fracture, left 5th metacarpal, on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral lower extremities neuropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral lower extremities neuropathy alone and discuss the effect of the Veteran’s bilateral lower extremities neuropathy on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel