Citation Nr: 1801030	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-09 105A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for a right ankle disability.  

2.  Entitlement to an earlier effective date prior to January 25, 2010 for the grant of service connection for a right ankle disability.  

3.  Entitlement to service connection for a left hip disability, to include as secondary to a right ankle disability.  

4.  Entitlement to service connection for a left knee disability, to include as secondary to a right ankle disability.  

5.  Entitlement to service connection for an upper right leg disability to include as secondary to a right ankle disability.  

6.  Entitlement to total disability based on individual unemployability (TDIU).  



REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Marine Corps from May 1968 to August 1971, and in the United States Army from November 1974 to June 1977.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In September 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing held from the RO via videoconference facilities.  A copy of the hearing transcript has been associated with the claims folder.

The issues of entitlement to service connection for a left hip disability, a left knee disability, an upper right leg disability, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  



FINDING OF FACT

In September 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeals for entitlement to an increased rating in excess of ten percent and an earlier effective date for the grant of service connection for a right ankle disability is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant via his authorized representative of the appeals of a 10 percent disability rating and the effective date for the grant of service connection for a left ankle disability have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (West 2014).  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 (2017).  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 appellant, through his authorized representative, at the September 2017 hearing, has withdrawn the appeal for entitlement to a rating in excess of 10 percent and an earlier effective date for the grant of service connection for a right ankle disability; hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeals for entitlement to a rating in excess of 10 percent and an earlier effective date for the grant of service connection for a right ankle disability, and they are dismissed.


ORDER

The appeal for entitlement to a rating in excess of 10 percent for a right ankle disability is dismissed.  

The appeal for entitlement to an earlier effective date for the grant of service connection for a right ankle disability is dismissed.  


REMAND

Upon review of the record, the Board concludes that further evidentiary development is necessary.  Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication.  

The Veteran was last afforded a VA examination for his knees, hips, and legs, in January 2014.  

The January 2014 VA examiner's opinion on service connection for left hip, left knee, and right upper leg disabilities as secondary to the service-connected right ankle disability contained information regarding aggravation of the right hip and right knee, which are not conditions claimed by the Veteran.  Therefore, an opinion on aggravation of the appropriate claimed conditions should be obtained.  

Furthermore, the Veteran's electronic claims file contains references to a "PM&RS evaluation and note on 08/06/14" in which the treatment provider reported that the Veteran's left hip, and right and left knee pain, were "probably due to overuse compensation of the right lower extremity."  This information should be incorporated into the VA examiner's service connection opinion.  

The Veteran should also be asked to identify any outstanding treatment records for his knee, leg, and ankle disabilities.  

The Board notes that the Veteran submitted a private medical opinion dated October 2017 which states that the Veteran's left ankle degenerative joint condition aggravates the Veteran's knee conditions.  However, the Veteran is service-connected for a right ankle disability and has not made a claim for a left ankle disability.  

The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper.  Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another).  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any outstanding treatment (to include any private, VA, or military) for knees, legs, and ankles.  With any assistance required from the Veteran, make appropriate efforts to obtain any outstanding treatment records identified by the Veteran.  

2.  Thereafter, schedule the Veteran for a VA examination to examine the claimed disabilities of the left knee, left hip, and upper right leg, by an appropriate medical professional.  All appropriate tests and studies shall be conducted.  

All relevant electronic records, including a copy of this remand, must be sent to the examiner for review.

.  


For each diagnosis of the left knee, left hip, or right upper leg, the examiner should also specifically answer the following questions: 

(a)  Whether it is at least as likely as not (i.e. 50 percent probability) that such disorder was related to the Veteran's active service; 

(b)  Whether it is at least as likely as not (i.e. 50 percent probability) that such disorder was caused by the Veteran's service-connected right ankle disability;  

(c)  Whether it is at least as likely as not (i.e. 50 percent probability) that such disorder is aggravated by the Veteran's service-connected right ankle disability;  

(d)  What is the impact of each diagnosed disability on the Veteran's ability to work? 

The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of left knee, left hip, or right upper leg symptoms or conditions in the medical record with the opinion that the examiner ultimately puts forth.  The examiner is specifically requested to comment on the August 2014 medical treatment note linking the Veteran's pain of the knees and left hip with "overuse compensation" of his right lower extremity, where his service-connected right ankle disability is located.  

The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion.  

The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran, as such is required by the law as interpreted by the Court.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his disabilities.  

3.  After undertaking any necessary additional development, readjudicate the claims remaining on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

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. §§ 5109B, 7112 (West 2014).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs