Citation Nr: 1430548 Decision Date: 07/08/14 Archive Date: 07/15/14 DOCKET NO. 11-13 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for pseudofolliculitis barbae. 4. Entitlement to service connection for bronchitis. 5. Entitlement to service connection for residuals of a collapsed lung from pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran had active service from May 1971 to February 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The issues of entitlement to service connection for a right knee and a left knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT On October 23, 2013, at the Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of the issues of entitlement to service connection for pseudofollicultiis barbae, bronchitis, and residuals of a collapsed lung from pneumonia is requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issues of entitlement to service connection for pseudofollicultiis barbae, bronchitis, and residuals of a collapsed lung from pneumonia by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS 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 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). 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 In the present case, the appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals as the issues of entitlement to service connection for pseudofollicultiis barbae, bronchitis and residuals of a collapsed lung from pneumonia, are dismissed. ORDER Entitlement to service connection for pseudofolliculitis barbae is denied. Entitlement to service connection for bronchitis is denied. Entitlement to service connection for residuals of a collapsed lung from pneumonia is denied. REMAND At the October 2013 Board hearing, the Veteran testified that he injured his right knee in 1972 or 1973 when he fell while playing intramural sports basketball while he was at Westover Air Force Base, Massachusetts. See Board Hearing Transcript at p. 3. He also testified that he injured his left knee in Thailand while playing intramural basketball. Id. The Veteran reported that he has had problems with his knees since service. Id. at 6. The Veteran was afforded a VA examination in September 2008. However, the Board finds that the VA examination report is inadequate. In the examination, the VA examiner noted he had limited service treatment records for review. The examiner found the Veteran's right knee was not service-connected. He stated that the Veteran had a note in his service treatment records in a history section of "fluid in the knee." He stated that, "There is no evidence he was ever seen or treated for his right knee, in service. No history of an injury in service." A July 1975 service treatment record reflects that the Veteran could not put any weight on his right leg because he had pain between the knee cap. Examination revealed swelling of the right knee with fluid obvious. The impression was hydrathrosis of the right knee. The note indicates fluid was removed from the knee and it was injected with Prednisolone. The Veteran's December 1977 report of medical history also reflects he was treated for fluid on the right knee. As the September 2008 VA examiner's rationale is inconsistent with the July 1975 service treatment record, the examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the claim must be remanded for a new VA examination. Additionally, as the Veteran is competent to report symptoms relating to his left knee, the VA examiner should also address the etiology of the Veteran's left knee disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). An April 1972 service treatment record reflects that the Veteran had pain in the anterior, proximal thigh, mid-line for 2 days. He stated that he was playing basketball prior to the onset of pain. The note indicated his legs and knee were affected. The Veteran reported that he was seen for his knee at the hospital at Westover Air Force Base. As any records from the hospital would be relevant to his claim, an attempt should be made to obtain records, if any, from Westover Air Force Base hospital pertaining to the knee. The Veteran testified that he was seen by private physicians, including the year he left the service. See Board Hearing Transcript at 6. He also said he discussed his knees with a private physician in 2005. Id. at 8-9. As the records may be relevant to the claims, an attempt should be made to obtain the records. Finally, the Veteran testified that he first received treatment at VA in 2005. A March 2007 VA treatment record indicates that the Veteran had right knee pain with an onset of June 2005. The earliest VA treatment record in the claims file is dated in 2007. As the records may be relevant to the Veteran's claim, the Veteran's complete VA treatment records from 2005 to present should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify the private physicians he referenced at the Board hearing, including K.S., who treated him within one year of his discharge from service, and the private physician he saw in 2005. Provide the Veteran with the necessary authorization and release forms to procure any outstanding private treatment records. If the Veteran identifies the private physicians and completes the appropriate forms, attempt to obtain the records. If no records are available, the claims folder must indicate this fact. 2. Obtain all of the appellant's VA treatment records from 2005 to January 2007, and from November 2008 to present. If no records are available, the claims folder must indicate this fact. 3. Attempt to obtain hospital records, if any, relating to treatment of the right knee from Westover Air Force Base from 1972-73. If no records are available, the claims folder must indicate this fact. 4. After completion of the above, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (at least as 50 percent probability) that Veteran has a right and/or left knee disability that is related to service, to include the July 1975 right knee injury. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. Thereafter, readjudicate the issues on appeal of entitlement to right and left knee disorder. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2013). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs