Citation Nr: 21028723 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-22 732A DATE: May 11, 2021 ORDER The appeal for entitlement to a disability rating in excess of 20 percent for postoperative residuals osteoblastic lesion right femoral neck is dismissed. The appeal for entitlement to a compensable disability rating for pinguecula, bilateral eye condition is dismissed. The appeal for entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to June 7, 2017 is dismissed. REMANDED Entitlement to service connection for sinus bradycardia is remanded. FINDING OF FACT In August 2020, prior to the promulgation of a Board decision in the matters of entitlement to a disability rating in excess of 20 percent for postoperative residuals osteoblastic lesion right femoral neck; entitlement to a compensable disability rating for pinguecula, bilateral eye condition; and entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to June 7, 2017, the Veteran requested in writing that his appeals in these matters be withdrawn; there are no questions of fact or law in these matters remaining for the Board to consider. CONCLUSION OF LAW The criteria for withdrawal of the appeals for entitlement to a disability rating in excess of 20 percent for postoperative residuals osteoblastic lesion right femoral neck; entitlement to a compensable disability rating for pinguecula, bilateral eye condition; and entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to June 7, 2017 by the Veteran are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. In September 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. Subsequently, a September 2020 rating decision granted entitlement to service connection for right lateral femoral cutaneous neuropathy of the thigh (claimed as: nerve damage, right leg). As this constitutes a full grant of the benefit sought on appeal in regard to the right leg nerve damage, there remains no issue of controversy for adjudication by the Board on that claim. See Grantham v. Brown, 114 F.3d 1156, 115859 (Fed. Cir. 1997). In September 2020, the Veteran's attorney filed a VA Form 20-0996, Decision Review Request: Higher-Level Review, indicating disagreement with a July 2020 rating decision, indicating that it failed to assign a 10 percent rating for sinus bradycardia. The record does not reflect that the Agency of Original Jurisdiction (AOJ) issued any rating decision, including in July 2020, granting service connection for sinus bradycardia. Further, in January 2021, the AOJ notified the Veteran and his attorney that VA was already processing a pending appeal for sinus bradycardia and that the Higher-Level Review request was not accepted by the AOJ as a result. Therefore, as the record does not reflect that service connection for sinus bradycardia has been granted and the AOJ has rejected the request for Higher-Level Review, the Board finds the matter seeking entitlement to service connection for sinus bradycardia remains before the Board in the legacy appeal system. Withdrawal of claims for entitlement to a disability rating in excess of 20 percent for postoperative residuals osteoblastic lesion right femoral neck; entitlement to a compensable disability rating for pinguecula, bilateral eye condition; and entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to June 7, 2017 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. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In correspondence received in August 2020, the Veteran requested withdrawal of his appeals seeking a disability rating in excess of 20 percent for postoperative residuals osteoblastic lesion right femoral neck; a compensable disability rating for pinguecula, bilateral eye condition; and total disability based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to June 7, 2017. See Correspondence, August 11, 2020. Accordingly, there are no allegations of error of fact or law with respect to these claims remaining for appellate consideration, and, the Board does not have jurisdiction to further consider appeals in the matters and the appeals are dismissed. REASONS FOR REMAND Entitlement to service connection for sinus bradycardia is remanded. As noted above, this claim was remanded to the AOJ in September 2019. The Board's remand in part directed the AOJ to obtain the Veteran's VA treatment records from the Atlanta VA Health Care System from October 2016 to the present and from the New Jersey VA Health Care System from October 2017 to the present, to obtain a medical opinion on the etiology of sinus bradycardia, and to issue a supplemental statement of the case for any benefit that continued to be denied after development was completed. VA treatment records from the New Jersey VA Health Care System have been obtained. However, the record does not reflect that attempts have been made to obtain VA treatment records from the Atlanta Health Care System from October 2016 to the present. A previous remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary in order to ensure substantial compliance with the Board's prior remand directives. A VA medical opinion was prepared in November 2019. In providing an opinion, the examiner stated that "the veteran's medical treatment records, after his discharge from military service to the present, are silent for continuous symptoms related to sinus bradycardia." However, the examiner did not address the December 1972 VA ECG (conducted in conjunction with a December 1972 VA general medical examination) which showed sinus bradycardia for the Veteran, the July 1977 statement from Dr. J. M. stating that the Veteran had been under his care for "severe bradycardia," or the Veteran's reports of experiencing continuous symptoms since service. The Board's remand specifically requested that the examiner consider the Veteran's allegations of continuity of symptomatology since his service. The opinion's failure to address this evidence in explaining its conclusion that there is no evidence of continuous symptoms of sinus bradycardia renders it inadequate and a new medical opinion is required. Additionally, the record reflects that after completing development in conjunction with the Board's September 2019 remand, the AOJ did not issue a supplemental statement of the case (SSOC) on the matter of entitlement to service connection for sinus bradycardia as is required by 38 C.F.R. § 19.31(c). Although a SSOC was issued in July 2020 on other matters, it did not address the sinus bradycardia matter. Therefore, if after conducting any further development, the AOJ continues to deny entitlement to service connection for sinus bradycardia an SSOC must be issued. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from the Atlanta VA Health Care System for the period from October 2016 to the present, and updated VA treatment records from October 2019 to the present. 2. Obtain an addendum opinion from the clinician who prepared the November 2019 VA medical opinion, or, if that clinician is not available, from another qualified clinician. An examination should be arranged only if the clinician finds it necessary. For each sinus bradycardia disability diagnosed at any time during the period of the current claim, the examiner must provide an opinion as to the following: Whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge) or is otherwise related to any incident of his military service, including his conceded exposure to toxic chemicals therein (with specific consideration given to his pertinent STRs, his MOS duties, the evidence of sinus bradycardia during service and after service in December 1972 VA examination and in 1977 according to the letter from private physician Dr. J. M., and his allegations of continuity of symptomatology since his service). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.