Citation Nr: 1332195 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-42 003 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for the service-connected left knee disability. 2. Entitlement to service connection for a right knee disability, claimed as secondary to the service-connected left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from June 1973 to June 1977. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the Veteran's electronic claims folder. The issue of a total compensation rating based on individual unemployability (TDIU) by reason of service-connected disability, has been raised by the record. That issue, however, has not been addressed by the RO and is referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet.App. 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO). The issue of service connection for a right knee disability, as secondary to the service-connected left knee disability is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT At the February 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for an increased rating for the service-connected left knee disability. CONCLUSION OF LAW The criteria for withdrawal of the Substantive Appeal with regard to the issue of an increased rating for the service-connected left knee disability 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 FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202 (2013). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2013). At the February 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw the claim for an increased rating for the service-connected left knee disability from appellate review. See Hearing Transcript at 2-3. As the Veteran has clearly withdrawn this issue, there remains no allegation of error of fact or law for appellate consideration with regard to this matter. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. Accordingly, the appeal to this extent must be dismissed. ORDER The appeal of the claim for an increased rating for the service-connected left knee disability is dismissed. REMAND For the following reasons, the Board finds that the Veteran's claim of service connection for a right knee disorder must be remanded to ensure that he is accorded full compliance with the statutory duty to assist. During the February 2013 hearing, the Veteran testified that he injured his right knee while completing a post-service physical agility test. See the hearing transcript, page 7. Specifically, the Veteran stated that he twisted his right knee in February 2008 while performing a vertical jump test that was required for his continued employment as a police officer. Id. The Veteran reported that he filed a worker's compensation claim following this post-service injury and was told by medical professionals that his current disability had existed prior to his recent injury. Id. He has reported that his claim was denied on this basis. During the hearing, the Veteran testified that he never injured his right knee prior to the February 2008 incident. Id at 6. Instead, he reported that medical professionals have determined that he developed a right knee disability over time, as a result of compensating for his service-connected left knee disability. Id at 6-7. Upon review, the records surrounding the Veteran's workers compensation claim have not been associated with his claims file. In addition, while the Veteran reported receiving treatment from Dr. P.C. following his 2008 injury, the earliest treatment record from Dr. P.C. contained in the claims file comes from April 2011. Therefore, on Remand, VA should attempt to obtain and associate these records with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002). Accordingly, this remaining matter is being REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all VA and non-VA health care providers who have treated him for his claimed right knee disorder since service. The Board is particularly interested in the Veteran's treatment records from Dr. P.C. from February 2008 to the present. The Veteran should also be asked to provide documents related to his Worker's Compensation claim involving a February 2008 injury, or that he provide sufficient information to allow VA to obtain such records. After procuring authorization from the Veteran for release of all identified records, the RO should to obtain copies of all such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the claims folder. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs