Citation Nr: 1760301
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 14-12 660 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
1. Entitlement to service connection for a left foot disability.
2. Entitlement to a rating in excess of 10 percent disabling for a service-connected left shoulder condition.
3. Entitlement to a compensable rating for service-connected bilateral hearing loss.
4. Entitlement to a rating in excess of 10 percent for tinnitus.
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
K. Hubers, Counsel
The Veteran served on active duty from February 2003 to May 2004.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.
The Veteran testified before the undersigned in a July 2017 Board hearing held at the RO. The claims file contains a transcript of the hearing.
The issues of entitlement to service connection for a left foot disability and of entitlement to higher ratings for left shoulder and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
At the Veteran’s July 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal with respect to a higher rating for tinnitus.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal by the appellant have been met with respect to the tinnitus claim. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 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.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016).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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn her appeal with respect to the tinnitus claim and, hence, there remain no allegations of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the tinnitus claim and it is dismissed.
The appeal with respect to the claim of entitlement to a rating in excess of 10 percent for tinnitus is dismissed.
The Veteran claims that her current left foot disability is related to an in-service event or injury. The evidence establishes current symptoms of a left foot disability and her service treatment records document complaints of left foot symptoms during her active service. See, e.g., August 2003 Chronological Record of Medical Care (noting “itchy bump” on left foot for five months and “deformity” getting worse). VA has not provided an examination or obtained an opinion regarding a potential link between the Veteran’s current left foot disability and the documented in-service event / injury. The evidence is sufficient to indicate a possible association. VA has a duty to provide her with an examination and obtain a medical opinion regarding the possible association. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006).
The Veteran has indicated that her left shoulder symptoms and hearing loss have worsened since her most recent VA examinations (both occurred in August 2012) to evaluate the severity of the conditions for rating purposes. See July 2017 Board Hearing Tr. at 13-14. The Veteran should be provided updated examinations with respect to the left shoulder and bilateral hearing loss. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, where the veteran claims a disability is worse than when originally rated and the evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination).
The Veteran testified that she has continued to receive treatment from VA facilities that is relevant to the claim. Upon remand, available VA treatment records should be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(2).
Accordingly, the case is REMANDED for the following action:
1. Obtain any outstanding, relevant VA medical records from May 2017 to the present.
2. Only after obtaining the VA medical records and any other development deemed necessary, schedule the Veteran for a VA examination to address the nature, symptoms, and etiology of the Veteran’s left foot disability. The entire claims file should be reviewed by the examiner.
After reviewing the record and performing any examination and/or testing of the Veteran deemed necessary, the examiner should address the following:
a. Identify each disability of the Veteran’s left foot.
b. For each left foot disability identified in response to (a), is it at least as likely as not (50 percent probability or greater) that the left foot disability was incurred in or otherwise related to the Veteran’s military service, including the presumed spider bite and the left foot symptoms documented in service treatment records?
The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made.
3. Schedule the Veteran for a VA examination to address the severity of the left shoulder disability.
4. Schedule the Veteran for a VA examination to address the severity of bilateral hearing loss.
5. After completing the above, and any other development deemed necessary, readjudicate, based on the entirety of the evidence, the Veteran’s claims of entitlement to service connection for a left foot disability and her claims of entitlement to higher ratings for her left shoulder and bilateral hearing loss. If the benefits sought on appeal are not granted to the appellant’s satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
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