Citation Nr: 1757537 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-05 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a neck condition. 2. Entitlement to service connection for dystonia. 3. Entitlement to service connection for a left ankle condition. 4. Entitlement to service connection for a right knee condition. 5. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1974. [The Veteran also served from February 1975 to September 1976 but this period has been found to be dishonorable for VA purposes and, therefore, cannot be considered when assessing eligibility for VA benefits.] These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. The issues of entitlement to service connection for right knee and left ankle disabilities and an increased rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran withdrew his appeal of service connection for a neck condition and dystonia during his February 2017 Board hearing. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider the claims of service connection for a neck condition and dystonia. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. Withdrawal can be by the Veteran or by his representative. Id. On the record during his February 2017 hearing, the Veteran withdrew his appeal seeking service connection for a neck condition and dystonia. Accordingly, the Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, because the Board has no further jurisdiction to review the appeal on these matters, it is dismissed. (CONTINUED ON NEXT PAGE) ORDER The appeal seeking service connection for a neck condition is dismissed. The appeal seeking service connection for dystonia is dismissed. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims, specifically by obtaining VA examinations. Right knee and left ankle While the Veteran underwent VA examinations for his left knee and right ankle, the examinations specifically did not discuss his right knee and left ankle. In February 2017, the Veteran testified during his Board hearing that that he injured his right knee and left ankle in sports related injuries during service and that it "seems like" he received VA treatment for his left ankle. VA treatment records reflect the Veteran had a right knee replacement in September 2016, see September 2016 VA treatment records, but do not otherwise show a left ankle diagnosis. The Board notes that the Veteran was diagnosed with right ankle achilles tendonitis during his VA examination for that claim (which was eventually granted), even though that disability had not been previously diagnosed. See June 2012 VA examination. As a result, it is not inconceivable that the Veteran has a left ankle disability, although there currently little evidence for it. These facts compel the Board to remand for VA examinations to resolve medical questions pertaining to the nature and cause of the Veteran's current disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hearing loss The Veteran's most recent VA examination for his service-connected bilateral hearing loss occurred in June 2012. Since that time, he has indicated that his disability has worsened. See February 2017 Board hearing. Because it has been five years since the last VA examination, a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from the Fayetteville VA Medical Center (VAMC) from September 2016 to the present and from the Little Rock VAMC from January 2010 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. After the above development is completed, the AOJ must arrange for an examination to determine the nature and cause of the Veteran's right knee disability. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must opine as to the following: (a) Identify, by diagnosis, all the Veteran's right knee disabilities present throughout the appeal period (from October 2011). The September 2016 right knee replacement must be discussed. (b) For each disability diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was incurred in or related to the Veteran's military service (from January 1971 to January 1974 only)? Please explain why. The examiner must address the Veteran's statements regarding reports of right knee pain in service. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 3. After the development in the first instruction is completed, the AOJ must arrange for an examination to determine the nature and cause of the Veteran's left ankle disability. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must opine as to the following: (a) Identify, by diagnosis, all the Veteran's left ankle disabilities present throughout the appeal period (from October 2011). (b) For each disability diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was incurred in or related to the Veteran's military service (from January 1971 to January 1974 only)? Please explain why. The examiner must address the Veteran's statements regarding reports of left ankle pain in service. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 4. After the development in the first instruction is completed, the AOJ should arrange for the Veteran to be afforded a VA audiological evaluation (with audiometric studies) to determine the current severity of his bilateral hearing loss. In addition to reporting audiometry results, the examiner should elicit from the Veteran information as to the effect his hearing loss has on his daily living, and comment on the expected impact the degree of hearing loss found would have on occupational and social functioning (i.e., provide an opinion as to whether the Veteran's reports of functional impairment are consistent with his level of hearing loss shown). A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 5. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs