Citation Nr: 1046965	
Decision Date: 12/16/10    Archive Date: 12/22/10

DOCKET NO.  05-34 957	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
			

THE ISSUES

1.  Entitlement to service connection for bilateral hilar nodular 
opacities.  

2.  Entitlement to service connection for degenerative joint 
disease of the bilateral hip, including as secondary to the 
service-connected right knee and right ankle disabilities. 

3.  Entitlement to service connection for degenerative joint 
disease of the bilateral foot, including as secondary to the 
service-connected right knee and right ankle disabilities.

4.  Entitlement to service connection for degenerative joint 
disease of the lumbar spine, including as secondary to the 
service-connected right knee and right ankle disabilities.

5.  Entitlement to an increased evaluation for status post 
meniscectomy of the right knee with degenerative joint disease, 
assigned a 10 percent rating prior to April 1, 2009 and currently 
rated 20 percent disabling.  

6.  Entitlement to an increased evaluation for status post 
reconstruction of the right ankle with degenerative joint 
disease, assigned a 10 percent rating prior to September 7, 2006 
and currently rated 20 percent disabling.  

7.  Entitlement to a temporary total evaluation because of 
treatment for a service-connected condition requiring 
convalescence.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

S. Lipstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to November 
1974.  

The increased rating for knee and ankle matters come to the Board 
of Veterans' Appeals (Board) from a May 2004 rating decision of a 
Department of Veterans Affairs (VA) Regional Office (RO).  A 
Notice of Disagreement was filed in July 2004, a Statement of the 
Case was issued in July 2005, and a Substantive Appeal was 
received in September 2005.  The hip, foot, and back matters come 
to the Board from a June 2005 rating decision of a VA RO.  A 
Notice of Disagreement was filed in July 2005, a Statement of the 
Case was issued in February 2006, and a Substantive Appeal was 
received in February 2006.  The bilateral hilar nodular opacities 
matter comes to the Board from a November 2008 rating decision of 
a VA RO.  A Notice of Disagreement was filed in November 2008, a 
Statement of the Case was issued in January 2009, and a 
Substantive Appeal was received in January 2009.  The temporary 
total evaluation because of treatment for a service-connected 
condition requiring convalescence matter comes to the Board from 
April 2009, June 2009, and August 2009 rating decisions of a VA 
RO.  A Notice of Disagreement was filed in July 2009, a Statement 
of the Case was issued in August 2010, and a Substantive Appeal 
was received at the September 2010 Board hearing.  

The Veteran testified at a hearing before the Board in September 
2010.  

The issues of service connection for bilateral hilar nodular 
opacities, bilateral hip, bilateral foot, and lumbar spine 
disabilities, as well as the issue of the temporary total 
evaluation because of treatment for a service-connected condition 
requiring convalescence, 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.


FINDINGS OF FACT

1.  In August 2010, prior to the promulgation of a decision in 
the appeal, the Veteran withdrew his appeal for entitlement to an 
increased evaluation for status post meniscectomy of the right 
knee with degenerative joint disease.  

2.  In August 2010, prior to the promulgation of a decision in 
the appeal, the Veteran withdrew his appeal for entitlement to an 
increased evaluation for status post reconstruction of the right 
ankle with degenerative joint disease.  




CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal have been 
met on the issue of entitlement to an increased evaluation for 
status post meniscectomy of the right knee with degenerative 
joint disease.  38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2010).

2.  The criteria for withdrawal of a substantive appeal have been 
met on the issue of entitlement to an increased evaluation for 
status post reconstruction of the right ankle with degenerative 
joint disease.  38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Ratings for Right Knee and Right Ankle

Criteria & Analysis

Under 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.  Except for appeals withdrawn on 
the record at a hearing, appeal withdrawals must be in writing.  
Withdrawal may be made by the appellant or his or her authorized 
representative.  See 38 C.F.R. § 20.204.

As noted in the Introduction, the right knee and right ankle 
issues come from a May 2004 rating decision.  In August 2010, the 
Veteran withdrew his appeal for increased ratings for the right 
knee and right ankle issues.  Thus, there remain no allegations 
of errors of fact or law for appellate consideration with respect 
to these issues.  Accordingly, the Board does not have 
jurisdiction to review the appeal on these matters and the issues 
of increased evaluations for the right knee and right ankle 
issues are dismissed.


ORDER

The appeal for entitlement to an increased evaluation for status 
post meniscectomy of the right knee with degenerative joint 
disease is dismissed.  

The appeal for entitlement to an increased evaluation for status 
post reconstruction of the right ankle with degenerative joint 
disease is dismissed.  


REMAND

The Veteran testified at the September 2010 Board hearing that he 
is currently receiving treatment for his bilateral hilar nodular 
opacities and orthopedic disabilities at the Houston VA Medical 
Center (VAMC).  The most recent VA outpatient treatment records 
are from 2008.  Records generated by VA facilities that may have 
an impact on the adjudication of a claim are considered in the 
constructive possession of VA adjudicators during the 
consideration of a claim, regardless of whether those records are 
physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  
Appropriate action is therefore necessary to fully assist the 
Veteran.  See 38 C.F.R. § 3.159 (2010).

The Board notes that the Veteran has voiced an argument that his 
current bilateral hip, bilateral foot and back disabilities are 
secondary to the service-connected right knee and right ankle 
disabilities.  The Veteran underwent VA examinations in December 
2004 and May 2006.  Although the VA examinations provided 
opinions with regard to whether the Veteran's current bilateral 
hip, bilateral foot, and back disabilities are caused by the 
Veteran's right knee and right ankle disabilities, the 
examinations did not provide opinions with regard to whether the 
Veteran's current bilateral hip, bilateral foot and back 
disabilities are aggravated by the Veteran's right knee and right 
ankle disabilities.  

Disability which is proximately due to or the result of a 
service-connected disease or injury shall be service connected.  
38 C.F.R. § 3.310 (2010).  The provisions of 38 C.F.R. § 3.310 
were amended during the pendency of this appeal, effective from 
October 10, 2006; the new provisions require that service 
connection not be awarded on an aggravation basis without 
establishing a pre-aggravation baseline level of disability and 
comparing it to current level of disability.  71 Fed. Reg. 52744-
47 (Sept. 7, 2006).  Although the stated intent of the change was 
merely to implement the requirements of Allen v. Brown, 7 Vet. 
App. 439 (1995), the new provisions amount to substantive changes 
to the manner in which 38 C.F.R. § 3.310 has been applied by VA 
in Allen-type cases since 1995.  Consequently, the Board will 
apply the older version of 38 C.F.R. § 3.310, which is more 
favorable to the claimant because it does not require the 
establishment of a baseline before an award of service connection 
may be made and the Veteran's claims were filed prior to the 
effective date of the revised regulation.  

Private treatment records from Dr. C.N.B. dated in August 2009 
reflect that Dr. C.N.B. opined that the Veteran's current spine 
and right hip problems are due to his service-connected right 
ankle and right knee disabilities.  

Under the circumstances, the Board believes that a VA examination 
with opinion is necessary to comply with 38 C.F.R. § 3.159(c)(4), 
and to reconcile the conflicting opinions noted above.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all records of the Veteran's 
treatment from the Houston VAMC dated since 
October 2008.  Incorporate the records into 
the Veteran's claims file.  If no records 
are available, documentation stating such 
should be incorporated into the claims 
file. 

2.  The Veteran should be scheduled for an 
appropriate VA orthopedic examination to 
determine the nature and etiology of any 
current bilateral hip, bilateral foot, and 
lumbar spine disabilities.  It is 
imperative that the claims file be made 
available to the examiner for review in 
connection with the examination.  
Following a thorough evaluation, during 
which all indicated tests are performed, 
the examiner should resolve any 
conflicting opinions, specifically those 
rendered by the December 2004 and May 2006 
VA examiners and Dr. C.N.B. with regard to 
the right hip and lumbar spine 
disabilities.  The examiner should also:

a) diagnose any current bilateral hip 
disability shown to exist;

b) opine whether any such bilateral hip 
disability is at least as likely as not 
related to the Veteran's service;

c) if not, whether any such bilateral hip 
disability is at least as likely as not 
related to the Veteran's service-connected 
right knee and right ankle disabilities;

d) if not, opine whether any such 
bilateral hip disability is aggravated 
(aggravation is defined for legal purposes 
as a worsening of the underlying condition 
versus a temporary flare-up of symptoms) 
by the Veteran's service-connected right 
knee and right ankle disabilities; and

e) diagnose any current bilateral foot 
disability shown to exist;

f) opine whether any such bilateral foot 
disability is at least as likely as not 
related to the Veteran's service;

g) if not, whether any such bilateral foot 
disability is at least as likely as not 
related to the Veteran's service-connected 
right knee and right ankle disabilities;

h) if not, opine whether any such 
bilateral foot disability is aggravated 
(aggravation is defined for legal purposes 
as a worsening of the underlying condition 
versus a temporary flare-up of symptoms) 
by the Veteran's service-connected right 
knee and right ankle disabilities; and

i) diagnose any current lumbar spine 
disability shown to exist;

j) opine whether any such lumbar spine 
disability is at least as likely as not 
related to the Veteran's service;

k) if not, whether any such lumbar spine 
disability is at least as likely as not 
related to the Veteran's service-connected 
right knee and right ankle disabilities;

l) if not, opine whether any such lumbar 
spine disability is aggravated 
(aggravation is defined for legal purposes 
as a worsening of the underlying condition 
versus a temporary flare-up of symptoms) 
by the Veteran's service-connected right 
knee and right ankle disabilities; and

m) provide detailed rationale, with 
specific references to the record, for the 
opinions. 

3.  After completion of the above, the RO 
should review the expanded record, and 
undertake a merits analysis of the claims 
of service connection for bilateral hilar 
nodular opacities, bilateral hip, 
bilateral foot, and lumbar spine 
disabilities, as well as the issue of the 
temporary total evaluation because of 
treatment for a service-connected 
condition requiring convalescence.  Unless 
the benefits sought are granted, the 
Veteran should be furnished a supplemental 
statement of the case and be afforded an 
opportunity to respond.  Thereafter, the 
case should be returned to the Board for 
appellate review. 

The Veteran and his representative have 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. 2009).



______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs