Citation Nr: 0005347 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-25 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for nicotine dependence. 2. Entitlement to service connection for chronic obstructive pulmonary disease with chronic bronchitis, secondary to nicotine dependence. 3. Entitlement to service connection for cardiomegaly, secondary to nicotine dependence. 4. Entitlement to service connection for Peyronie's disease. 5. Entitlement to service connection for a low back disorder, to include sciatica. 6. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. 7. Entitlement to an increased rating for chondromalacia of the left knee, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for chondromalacia of the right knee, currently evaluated as 10 percent disabling. 9. Entitlement to an increased (compensable) rating for anemia. REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Roberts, Counsel INTRODUCTION The veteran served on active duty from May 1967 to May 1989. This appeal arises before the Board of Veterans' Appeals (Board) from a September 1997 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted an increased rating of 10 percent for hypertension; which continued a noncompensable rating for anemia; which continued a 10 percent rating for left knee chondromalacia; and which granted a 10 percent rating for right knee chondromalacia. This claim also arises before the Board from a December 1998 rating decision which denied entitlement to service connection for nicotine dependence; which denied entitlement to service connection for chronic obstructive pulmonary disease with chronic bronchitis, secondary to nicotine dependence; which denied entitlement to service connection for cardiomegaly, secondary to nicotine dependence; which denied entitlement to service connection for Peyronie's disease; and which denied entitlement to service connection for a low back disorder, to include sciatica. REMAND The Board notes that a September 1997 rating decision continued a 10 percent rating for left knee chondromalacia and granted a 10 percent rating for right knee chondromalacia. The veteran filed a notice of disagreement to the ratings for his knee disabilities in September 1997. However, the veteran has not been provided with a statement of the case on those issues. The veteran has also not submitted a substantive appeal with regard to those issues. Therefore, that issue is not on appeal before the Board. The United States Court of Appeals for Veterans Claims has held that where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the Board feels that the veteran should be issued a statement of the case on the appropriate issues and informed of the actions necessary to perfect his appeal on those issues. The Board also notes that any pertinent evidence submitted by the appellant or his representative which is accepted by the Board must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case unless this procedural right is waived by the veteran or representative or unless the Board determines that the benefit or benefits to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. 38 C.F.R. § 20.1304(c) (1999). The Board notes that the veteran appeared for an October 1999 hearing before the undersigned. At that hearing, the veteran submitted evidence and properly executed a waiver in which he waived "regional office consideration of the additional evidence and records which I am submitting to the Member of the Travel Board of the Board of Veterans' Appeal this date." While that waiver properly waives agency of original jurisdiction consideration of the additional evidence submitted on that day, the Board notes that subsequent to the most recent supplemental statement of the case, and at times other than the day of that hearing, the veteran has submitted pertinent evidence, to include pertinent medical evidence relating to the disabilities in question. The Board finds that the veteran has not executed a waiver of consideration of that evidence by the agency of original jurisdiction. Therefore, the Board finds that the veteran's claims must be remanded for review and preparation of a supplemental statement of the case. The Board makes no determination as to whether the veteran's claims of entitlement to service connection are well grounded as this preliminary matter of referral must be accomplished prior to any such determination. The Board notes that where a veteran has stated that his service-connected disability has increased in severity, his claim of entitlement to an increased rating is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The United States Court of Appeals for Veterans Claims has held that VA has a duty to assist claimants in the development of facts pertinent to their claims and that VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999); Littke v. Derwinski, 1 Vet. App. 90 (1990). The Board feels that a VA examination would be useful in determining the current extent and severity of the veteran's anemia as the veteran has not been provided a recent examination for that disability. Accordingly, this case is REMANDED for the following development: 1. The RO should issue the veteran and his representative a statement of the case with regard to the issues of entitlement to an increased rating for left knee chondromalacia and entitlement to an increased rating for right knee chondromalacia. The veteran should be informed of his appeal rights and of the actions necessary to perfect an appeal on those issues. 2. The RO should schedule the veteran for a VA examination for anemia. The claims folder and a copy of this remand should be made available to and be reviewed by the examiner prior to the examination. Specifically the examiner should provide the following information: a) The examiner should perform a thorough review of the veteran's claims file and medical history and should state in the examination report that such review has been conducted. b) The examiner should state what current signs and symptoms of anemia are present. The examiner should provide a level of the veteran's hemoglobin as measured in gm/ml. The examiner should also state whether or not the veteran has weakness, easy fatigability, headaches, lightheadedness, shortness of breath, dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute), syncope (three episodes in the last six months), high output congestive heart failure, or dyspnea at rest. For each sign listed, the examiner should specifically state whether or not that sign is present as a result of the veteran's anemia, and should provide an opinion as to the frequency and/or severity of that symptom. 3. The RO should review the claims folder and ensure that all of the development action has been conducted and completed in full. Specific attention is directed to the examination report. The Court has held that, if the requested examination does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. Following completion of the foregoing, the RO should review all issues on appeal, with consideration of all evidence of record. If the decision remains adverse to the veteran, in whole or in part, he and his representative should be furnished a supplemental statement of the case covering all issues on appeal and afforded the applicable period of time within which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board. The Board expresses its gratitude in advance to the RO for assisting in the requested development. The purpose of this REMAND is to obtain additional evidence and to ensure compliance with due process considerations. No inference should be drawn regarding the final disposition of this claim. The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may have an adverse effect upon his claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). M. W. GREENSTREET Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).