Citation Nr: 1811360	
Decision Date: 02/23/18    Archive Date: 03/06/18

DOCKET NO.  10-23 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial disability rating in excess of 30 percent for service-connected psychotic disorder not otherwise specified (NOS).

2. Entitlement to an initial disability rating in excess of 20 percent for service-connected chronic low back strain.

3. Entitlement to an initial disability rating in excess of 30 percent for service-connected right knee strain.

4. Entitlement to an effective date earlier than October 18, 2010 for the grant of service connection for right knee strain.

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

REPRESENTATION

Veteran represented by:	Ralph J. Bratch, Esq.


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

R. Janofsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1974 to July 1977. 

The Veteran testified before the undersigned Veterans Law Judge during a January 2017 video conference hearing.  A transcript of that proceeding is associated with the claims file.

In July 12, 2017 correspondence, the Veteran's attorney requested and was granted a 90-day extension (until October 9, 2017) to afford the attorney time to review the recently disclosed claims file.  In October 6, 2017 correspondence, the Veteran's attorney requested and was granted another 90-day extension (until January 4, 2018) to submit an independent medical evaluation.  The attorney timely submitted a private medical evaluation report and brief in December 2017.

The low back, psychiatric disorder, and TDIU claims on appeal have been remanded previously, including most recently in July 2015.  The Board finds that the RO substantially complied with the Board's July 2015 remand instructions.  See Stegall v. West, 11 Vet. App. 268 (1998).  Regrettably, another remand of these claims is nonetheless required for further development.

The issue of entitlement to service connection for a right hand condition (claimed as stroke residuals) was previously on appeal and denied in a July 2015 Board decision.  Therefore, that issue is not currently before the Board.  

The issues of entitlement to an initial disability rating in excess of 30 percent for service-connected psychotic disorder NOS, entitlement to an initial disability rating in excess of 20 percent for service-connected chronic low back strain, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

During the January 2017 Board hearing, the Veteran and his attorney expressly stated on the record that the Veteran wished to withdraw the appealed issues of entitlement to an initial disability rating in excess of 30 percent for service-connected right knee strain and entitlement to an effective date earlier than October 18, 2010 for the grant of service connection for right knee strain.


CONCLUSION OF LAW

The criteria for the withdrawal of the appealed issues of entitlement to an initial disability rating in excess of 30 percent for service-connected right knee strain and entitlement to an effective date earlier than October 18, 2010 for the grant of service connection for right knee strain have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).



REASONS AND BASES FOR FINDING 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 (West 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.  Here, during the January 2017 Board hearing, the Veteran and his representative expressly stated that the Veteran wished to withdraw the appeal as to the issues of entitlement to an initial disability rating in excess of 30 percent for service-connected right knee strain and entitlement to an effective date earlier than October 18, 2010 for the grant of service connection for right knee strain.  Thus, there remain no allegations of errors of fact or law for appellate consideration as to those issues.  Accordingly, the Board does not have jurisdiction to review those issues, and they are dismissed.


ORDER

The appealed issue of entitlement to an initial disability rating in excess of 30 percent for service-connected right knee strain is dismissed.

The appealed issue of entitlement to an effective date earlier than October 18, 2010 for the grant of service connection for right knee strain is dismissed.


REMAND

In this case, the Board finds that VA's duty to assist in the development of the remaining claims has not been satisfied.  Therefore, a remand of those issues is necessary for further development.


Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file all outstanding VA treatment records from the following VA facilities and time periods:

* North Florida / South Georgia VA Healthcare System, including the Gainesville VAMC and the Marianna CBOC (and all other associated outpatient clinics) from April 2016 to the present;
* Miami, Florida VAMC and all associated outpatient clinics from March 2015 to the present;
* Gulf Coast Veterans Health Care System (including the Biloxi, Mississippi VAMC) from April 2016 to the present; and
* Central Alabama VA Healthcare System from December 2008 to the present.

2. Then, only after obtaining all outstanding VA treatment records to the extent possible, proceed with the following instructions. 

3. Schedule the Veteran for a VA spine examination.  The examiner must note his or her review of the complete claims file, including this remand.  Then, the examiner should opine as to the following, with a full supporting rationale:

Please clarify whether the Veteran has radiculopathy.  See April 2016 VA spine examination report, Item 8, page 5 (finding Veteran had radiculopathy and specifically noting symptoms' location and severity); but see Item 14(a), page 6 (finding under other pertinent physical findings, "The above motor weakness on the entire right lower limb is not consistent with lumbar radiculopathy....).  Please specifically consider the medical evidence of record by the Veteran's treating providers diagnosing radiculopathy or sciatica associated with his current low back symptoms.  See May 2016 VA primary care note (discussing lumbar radiculopathy treatment, symptoms, and diagnosis); see also March 2016 private hospital E.R. treatment record (diagnosing lumbago with sciatica, right side).

4. Schedule the Veteran for a VA examination with a mental health professional to address the current nature, symptoms, and severity of his service-connected psychotic disorder NOS.  The examiner must note his or her review of the complete claims file, including this remand.  The examiner must comment on the functional impact of this condition on his ability to work, with a full supporting rationale.

5. Schedule the Veteran for a VA examination with a qualified medical professional to address the current nature, symptoms, and severity of his service-connected right knee condition.  The examiner must comment on the functional impact of this condition on his ability to work, with a full supporting rationale.

6. After completing the above and any other development deemed necessary, readjudicate the claims based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The appellant 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.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs