Citation Nr: 0926021	
Decision Date: 07/13/09    Archive Date: 07/21/09

DOCKET NO.  07-33 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to service connection pilondial cyst and 
rectal fissure (claimed as rectal bleeding).

2.  Entitlement to service connection for degenerative 
arthritis of the left knee with crepitus (left knee 
disorder).

3.  Entitlement to service connection for heart disease, to 
include as secondary to left knee disorder.

4.  Entitlement to service connection for a right hip 
disorder, to include as secondary to left knee disorder.

5.  Entitlement to service connection for a left hip disorder 
(claimed as trochanter calcification of left femur), to 
include a secondary to left knee disorder.

6.  Entitlement to service connection for a cervical spine 
disorder, to include as secondary to left knee disorder.

7.  Entitlement to service connection for a lumbar spine 
disorder, to include as secondary to left knee disorder.

8.  Entitlement to service connection for left lower 
extremity sciatica and numbness (claimed as left leg nerve 
damage), to include as secondary to left knee disorder.

9.  Entitlement to service connection for left hand and arm 
nerve damage, to include as secondary to left knee disorder.


REPRESENTATION

Appellant represented by:	Tennessee Department of 
Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and his private physician, Dr. C.N.B.


ATTORNEY FOR THE BOARD

D. Whitehead, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1965 to December 
1968.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from an April 2007 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee, which denied the above-referenced 
claims.  

In April 2009, the Veteran testified at a video conference 
hearing, held at the RO, over which the undersigned Veterans 
Law Judge presided.  A transcript of that hearing has been 
associated with the claims file.  

The issues of service connection for pilondial cyst and 
rectal fissure (rectal condition), a left leg disorder and 
service connection for a right hip disorder, left hip 
disorder, lumbar spine disorder, left lower extremity 
sciatica and numbness, left upper extremity numbness, and a 
heart condition being remanded are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

During the April 2009 video conference hearing, prior to the 
promulgation of a decision in the appeal, the Veteran 
requested on the record to withdraw the appeal for 
entitlement to service connection for a cervical spine 
disorder, to include as secondary to a left knee disorder.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal for entitlement to 
service connection for a cervical spine disorder, to include 
as secondary to a left knee disorder, by the appellant have 
been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 
38 C.F.R. § 20.204 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any 
appeal which fails to allege specific error of fact or law in 
the determination being appealed.  A substantive appeal may 
be withdrawn in writing at any time before the Board 
promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b) 
(2008).  Except for appeals withdrawn on the record at a 
hearing, appeal withdrawals must be in writing.  38 C.F.R. § 
20.204(c) (2008) (as amended by 68 Fed. Reg. 13235 (April 18, 
2003)).

During the April 2009 video conference hearing before the 
undersigned, prior to promulgation of a decision in the 
appeal, the Veteran requested to withdraw his appeal as to 
the issue of entitlement to service connection for a cervical 
spine disorder, to include as secondary to a left knee 
disorder.   

As the Veteran has withdrawn the appeal as to the issue of 
entitlement to service connection for a cervical spine 
disorder, to include as secondary to a left knee disorder, 
there remain no allegations of errors of fact or law for 
appellate consideration.  Accordingly, the Board does not 
have jurisdiction to review the appeal, and it is dismissed.


ORDER

The claim for entitlement to service connection for a 
cervical spine disorder, to include as secondary to a left 
knee disorder is dismissed.


REMAND

Unfortunately, a remand is required with respect to all of 
the Veteran's claims for service connection for a rectal 
condition and a left knee condition, as well as service 
connection for heart disease, a right hip disorder, a left 
hip disorder, a lumbar spine disorder, left lower extremity 
sciatica and numbness, and left upper extremity numbness, all 
to include as secondary to a left knee disorder.  Although 
the Board sincerely regrets the additional delay, it is 
necessary to ensure that there is a complete record upon 
which to decide the Veteran's claims so that he is afforded 
every possible consideration.  VA has a duty to assist 
claimants in obtaining evidence needed to substantiate a 
claim.  38 U.S.C.A. §§ 5107(a) 5103A ; 38 C.F.R. § 3.159(c).

Service Connection Claims for Rectal Disorder and Left Knee 
Disorder

As for the Veteran's claims for service connection for a left 
knee disorder and a rectal disorder, he has essentially 
claimed that these conditions are related to his period of 
active service.  With regards to the left knee claim, the 
Veteran has asserted that he sustained a left knee injury in 
1965 during basic training and again in 1966 while in 
Officer's Candidate School (OSC).  He reported reinjuring his 
left knee in 1967, while stationed in South Korea.  He claims 
that his current rectal disorder first manifested during OSC 
and that he underwent treatment for the condition in service.    

The Board notes that service connection means that the facts, 
shown by the evidence, establish that a particular injury or 
disease resulting in disability was incurred in the line of 
duty in the active military service or, if pre-existing such 
service, was aggravated during service.  38 U.S.C.A. § 1110; 
38 C.F.R. §§ 3.303, 3.304.  

Having reviewed the claims file, the record is unclear 
whether all of the Veteran's available service treatment 
records are currently of record.  Specifically, the Board 
notes that the Veteran has contended that he received in-
service treatment for a left knee injury and for a rectal 
condition.  However, records reflecting treatment for these 
conditions have not been associated with the claims file.  In 
his regard, the Board notes that on the January 1966 OCS 
report of medical examination shows that following the 
Veteran's report of having sustained a left knee injury in 
1965, he was referred for an orthopedic consultation; the 
January 1966 OSC report indicates that the orthopedic 
consultation report was attached.  However, a review of the 
claims file reveals that the report of the in-service 
orthopedic consultation is currently not associated with the 
claims file.  As this service treatment record is not 
currently associated with the claims file, the Board is 
unsure whether other service treatment records exist, which 
have also not been identified or associated with the claims 
file.  

In this regard, the Veteran has continuously reported that 
all of his service treatment records have not been associated 
with the claims file.  Specifically, he has asserted that his 
"sick call" records reflecting in-service treatment for his 
left knee injuries and rectal conditions are currently not of 
record, to include records of in-service medical treatment he 
received while stationed in South Korea.  

It is unclear from a review of the record what steps the RO 
has undertaken to determine if all of the Veteran's available 
service treatment records have been obtained.  Thus, in light 
of the Veteran's contentions and of the evidence suggesting 
the existence of additional service treatment records, the 
Board finds that additional development is needed in an 
attempt to identify and locate any available service 
treatment records not currently of record and associated any 
records obtained with the claims file.    

Moreover, the Board notes that the Veteran has not been 
afforded a VA examination with respect to his left knee 
disorder and rectal disorder claims.  To this extent, the 
Board acknowledges that the evidence of record includes 
private medical opinions rendered by the Veteran's private 
physician, Dr. C.N.B., in December 2005, October 2006, and 
April 2009, in which the physician opined that the Veteran's 
left knee condition and rectal condition are related to his 
military service.  The Board notes that Dr. C.N.B.'s opinions 
were essentially that the left knee disorder and the rectal 
disorder are related to the Veteran's military service as 
there was no other likely etiology for the conditions.  While 
Dr. C.N.B. indicated that he based his opinions on a review 
of the Veteran's then available service treatment records, 
the Veteran's own statements and lay statements regarding the 
onset of his conditions, and a review of the post-service 
medical records, the Board finds the private medical opinions 
to be insufficient with which to decide the Veteran's claims; 
the opinions do not provide a detailed rationale which takes 
into account or thoroughly discuss the objective in-service 
and post-service medical treatment evidence.  The Board notes 
that assistance by VA includes providing a medical 
examination or obtaining a medical opinion when such an 
examination or opinion is necessary to make a decision on a 
claim.  When medical evidence is inadequate, VA must 
supplement the record by seeking an advisory opinion or 
ordering another medical examination.  Colvin v. Derwinski, 1 
Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 
(1992).  Thus, the Board finds that additional development is 
necessary to properly assess the nature, extent, and etiology 
of the Veteran's left knee condition and rectal condition.  

Right Hip Condition, Left Hip Condition, Lumbar Spine 
Condition, Left Lower Extremity Sciatica and Numbness, Left 
Upper Extremity Numbness, and Heart Condition, all to include 
as Secondary to Left Knee Disability

Finally, with regard to the Veteran's claims of entitlement 
to service connection for a right hip condition, a left hip 
condition, a lumbar spine condition, left lower extremity 
sciatica and numbness, left upper extremity numbness, and a 
heart condition, all to include as secondary to a left knee 
disability, the Board finds that these claims are 
inextricably intertwined with the left knee claim being 
remanded herein, as the resolution of that claim might have 
bearing upon the claims for secondary service connection.  
The appropriate remedy where a pending claim is inextricably 
intertwined with claims currently on appeal is to defer 
adjudication of the claim on appeal pending the adjudication 
of the inextricably intertwined claim.  Harris v. Derwinski, 
1 Vet. App. 180 (1991).  As such, the Veteran's remaining 
claims for service connection are held in abeyance pending 
further development and adjudication of the Veteran's left 
knee claim.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC shall contact all 
appropriate alternative sources in an 
attempt to obtain any available service 
treatment records that are not yet 
associated with the claims file, to 
include any orthopedic examination reports 
associated with the January 1966 report of 
medical examination and all "sick call" 
treatment records.  All attempts to obtain 
any additional service treatment records 
should be documented for the claims file.  
If said records are not available, the AOJ 
should document for the record the search 
undertaken and the unavailability of the 
records.

2.    After completion of the foregoing, 
the RO/AMC shall schedule the Veteran for 
an appropriate VA examination in order to 
determine the nature and etiology of any 
rectal disorder found on examination.  The 
claims file and a copy of this Remand must 
be reviewed by the examiner in conjunction 
with conducting the examination.  All 
necessary tests and studies should be 
performed, and all findings must be 
reported in detail.

The examiner should render an opinion as 
to whether it is at least as likely as not 
(a 50 percent or greater likelihood) that 
any rectal disorder found on examination 
had its onset during the Veteran's period 
of active service or is otherwise related 
to his military service.  In doing so, the 
examiner should acknowledge the Veteran's 
report of a continuity of symptomatology.

It is requested that the examiner consider 
and reconcile any additional opinions of 
record or any contradictory evidence 
regarding the above.  A complete rationale 
for any opinion expressed shall be 
provided in a legible report.  If the 
examiner is unable to provide an opinion 
without resort to mere speculation, he or 
she should so indicate and explain why an 
opinion cannot be reached.  

3.  The RO/AMC will make arrangements for 
the Veteran to be scheduled for an 
appropriate VA examination to determine 
the onset and/or etiology of any left knee 
conditions found to be present.  The 
claims file and a copy of this Remand must 
be made available to and reviewed by the 
examiner in conjunction with conducting 
the examination of the Veteran.  The 
examiner must state if the claims file was 
reviewed.  All tests deemed necessary 
should be conducted.

The examiner is asked to opine whether it 
is at least as likely as not (50 percent 
or greater likelihood) that any left knee 
condition found on examination had its 
onset during service or is related to any 
in-service disease or injury.  In doing 
so, the examiner should acknowledge the 
Veteran's report of a continuity of left 
knee symptomatology.
 
It is requested that the examiner consider 
and reconcile any additional opinions of 
record or any contradictory evidence 
regarding the above.  A complete rationale 
for any opinion expressed should be 
provided in a legible report.  If the 
examiner is unable to provide an opinion 
without resort to mere speculation, he or 
she should so indicate and explain why an 
opinion cannot be reached.

4.  Following completion of the above 
tasks, the RO/AMC should determine whether 
additional VA examinations are needed to 
assess the nature and etiology of any 
right hip, left hip, lumbar spine, left 
lower extremity nerve condition, left 
upper extremity nerve condition, and heart 
conditions to determine whether any of the 
stated conditions are related to the 
Veteran's period of active service or to a 
service-connected disability. 

5.  Upon completion of the above tasks and 
all necessary notice and assistance 
requirements, the RO shall readjudicate 
the Veteran's claims.  If the benefits 
sought on appeal remain denied, provide 
the Veteran and his representative with a 
Supplemental Statement of the Case and 
afford an appropriate opportunity to 
respond thereto prior to returning the 
case to the Board.

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.




______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals








 Department of Veterans Affairs