Citation Nr: 1336946	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-04 727	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to a higher evaluation for left knee chondromalacia with instability, currently rated as 20-percent disabling. 

2. Entitlement to a higher evaluation for left knee post-traumatic arthritis, currently rated as 10-percent disabling.

3. Entitlement to a higher evaluation for right knee tricompartmental osteoarthritis, currently rated as 10-percent disabling.  

4. Entitlement to service connection for Hepatitis C.

5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to November 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

A videoconference hearing was held in November 2012 before the undersigned Veterans Law Judge (VLJ) of the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that, to comply with 38 C.F.R. § 3.103(c)(2), the VLJ chairing a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Consistent with Bryant, the presiding VLJ complied with these two dictates set forth in this VA regulation.

Also during the hearing, however, the Veteran withdrew his claims of entitlement to service connection for Hepatitis C and for increased ratings for his right and left knee arthritis.  So the Board is summarily dismissing these claims since no longer being contested.  See 38 C.F.R. § 20.204 (2013).  To the contrary, though, the Board is assuming jurisdiction over a derivative TDIU claim since raised during the hearing and "inextricably intertwined" with the claim for an increased rating for the left knee disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).
But these claims of entitlement to an increased rating for the left knee chrondromalacia with instability and a TDIU require further development before being decided on appeal, so the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

On November 7, 2012, so the day of his hearing and prior to the promulgation of a decision in this appeal on the claims of entitlement to service connection for Hepatitis C and increased ratings for the right and left knee arthritis, the Veteran withdrew these claims.


CONCLUSION OF LAW

The criteria are met for withdrawal of the appeal of the claims of entitlement to service connection for Hepatitis C and increased ratings for the right and left knee arthritis.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013).  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 Veteran has withdrawn the appeal of his claims for service connection for Hepatitis C and increased ratings for his right and left knee arthritis.  Hence, there remain no allegations of errors of fact or law for appellate consideration concerning these claims.  Accordingly, the Board does not have jurisdiction to review these claims on appeal and they are dismissed.


ORDER

The claim for a higher evaluation for the left knee post-traumatic arthritis, currently rated as 10-percent disabling, is dismissed.

The claim for a higher evaluation for the right knee tricompartmental osteoarthritis, also currently rated as 10-percent disabling, also is dismissed.

As well, the claim for service connection for Hepatitis C is dismissed.


REMAND

The Veteran last had a VA Compensation and Pension examination for his left knee disability (specifically, for the chrondromalacia with instability) in November 2009, so four years ago.  He alleges a significant worsening of this disability since.  Therefore, another examination is needed reassessing the severity of this disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.").  See also Caffrey v. Brown, 6 Vet. App. 377 (1994) and Allday v. Brown, 7 Vet. App. 517, 526 (1995).

He also needs to be provided Veterans Claims Assistance Act (VCAA) notice regarding how to substantiate his derivative TDIU claim, as well as assistance in developing this claim through a VA general medical examination and opinion regarding his employability.


Accordingly, these claims are REMANDED for the following additional development and consideration:

1. Send the Veteran a VCAA letter regarding his derivative claim of entitlement to a TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002 & Supp. 2013), and all other applicable legal precedent.

2. Also send him a formal TDIU application, 
VA Form 21-8940, and have him complete and return it.

3. As well, obtain from within the VA San Antonio Healthcare System (HCS) (and/or other appropriate medical facility) all available treatment records concerning this Veteran.  Then associate all paper records obtained with the claims file, if relevant, or in the alternative associate an electronic copy of these records with the Veteran's "Virtual VA" claims folder.

4. Next schedule the Veteran for a VA examination to reassess the severity of his left knee disability (in particular, the chrondromalacia with instability).  The claims folder must be provided to and reviewed by the examiner in conjunction with the examination.  All indicated tests and studies should be performed, and all findings should be set forth in detail.

With regards to this specific component of the left knee disability under consideration, that of chondromalacia with instability, the VA examiner must provide a thorough exposition of all symptoms and manifestations (that is, apart from the arthritis and limitation of motion), such as would be rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, for "other" impairment of the knee, including recurrent subluxation and/or lateral instability. 

The Veteran has withdrawn his appeal of the claim of entitlement to a higher rating for the left knee arthritis, buy it is requested the VA examiner nonetheless indicate all present symptoms and manifestations of this other component of the service-connected left knee disability, including an assessment as to the extent of limitation of motion on flexion and extension, consistent with 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (on referral from DCs 5003 and 5010).  So to this end, all necessary diagnostic testing and evaluation should be performed, including especially range-of-motion measurement.  In this regard, the examiner should determine whether the left knee exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the left knee, including during times when these symptoms are most prevalent (flare ups) or during prolonged, repetitive, use of this knee.

5. A VA compensation examination also is needed to assist in determining the cumulative effect of the Veteran's service-connected disabilities (so when considering them in combination, not just in isolation) on his ability to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison.  The claims folder must be made available for the examiner to review.  In providing this requested opinion, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or mental condition or his advancing age.  The requested opinion must also take into consideration the Veteran's level of education, prior work experience and training. 

If an opinion cannot be rendered without resorting to mere speculation, please explain why this is not possible.

6. Review the reports of the examinations to ensure they are responsive to the questions posed.  If not, take corrective action.  38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance).

7. Then adjudicate and readjudicate these claims being remanded in light of this and all other additional evidence.  If these claims are not granted or continue to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise him that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examinations, is both critical and appreciated.  He is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655.

These claims 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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs