Citation Nr: 1803210	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-00 313	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of hepatitis.

2.  Entitlement to a compensable rating for bilateral hearing loss.

3.  Entitlement to a disability rating in excess of 10 percent for chondromalacia, right knee.

4.  Entitlement to a disability rating in excess of 10 percent for chondromalacia, left knee.

5.  Entitlement to service connection for a right hip condition, to include as secondary to service-connected chondromalacia, left and right knee.

6.  Entitlement to service connection for a left hip condition, to include as secondary to service-connected chondromalacia, left and right knee.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Boyd Iwanowski, Counsel


INTRODUCTION

The Veteran served on active duty from September 1965 to December 1966.

These matters come before the Board of Veterans' Appeals (Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In December 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the proceeding is associated with the electronic claims file.

The issues of entitlement to increased evaluations for chondromalacia, left and right knee and entitlement to service connection for bilateral hip conditions are addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

In December 2016, at his hearing before the Board and prior to the promulgation of a decision in this appeal, the Veteran requested to withdraw his appeal as to the issues of whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for residuals of hepatitis and entitlement to a compensable rating for bilateral hearing loss.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal on the issues of whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for residuals of hepatitis and entitlement to a compensable rating for bilateral hearing loss have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  

In December 2016, prior to the promulgation of a decision by the Board in this case, the Veteran requested to withdraw his appeal as to whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for residuals of hepatitis and entitlement to a compensable rating for bilateral hearing loss before the undersigned at a Travel Board hearing.  This request was reduced to writing in the hearing transcript on record.  See pg. 2 of the transcript.  There remains no allegation of error of fact or law for the Board to address.  Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they are dismissed.
ORDER

The claim of whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for residuals of hepatitis is dismissed.

The claim for a compensable rating for bilateral hearing loss is dismissed.


REMAND

The Board regrets additional delay, but finds that remand is necessary prior to final adjudication of the remaining claims in order to fully satisfy the duty to assist the Veteran.

The Veteran last underwent a VA examination of his knees in July 2011.  At his December 2016 hearing before the Board, he complained of increased instability and pain in his knees and that his knee condition had worsened.  Given evidence of worsening since the last VA examination, the Board finds remand is necessary to schedule an examination to determine the current severity of the Veteran's service connected knee conditions.

Regarding the Veteran's hips, the Veteran contends that they have been affected by his knees and are currently tender and sore.  See April 2011 Statement in Support of Claim; December 2016 Hearing Transcript.  Upon examination in July 2011, the hips were not examined as the examiner determined the Veteran did not have a hip condition.  In addition, an etiology opinion was not provided as a hip condition was not diagnosed.  There is lay evidence that the Veteran may have bilateral hip disabilities that he argues were caused or aggravated by his service-connected knee conditions.  To provide the Veteran every opportunity, the Board will remand the claim for a VA hip examination to determine whether the Veteran has a current disability or disabilities in his hips and whether it is at least as likely as not that such disability is related to service or to his service-connected knee conditions.

Also on remand, any outstanding VA treatment records and private treatment records should be requested and associated with the electronic claims file, if available.

Accordingly, the case is REMANDED for the following action:

1. Associate all outstanding VA treatment records, if any, with the electronic claims file.

2.  Ask the Veteran to provide authorization for release of any private treatment records pertaining to his bilateral hips and bilateral knees that are not already associated with the electronic claims file.  Request any records properly identified by the Veteran.  

To expedite his case, the Veteran is asked to submit any new treatment records himself.

3. Schedule the Veteran for a VA knee examination to determine the current nature and severity of his service connected left and right knee disabilities. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must address the following:

 a) The examination should record the results of range of motion testing for pain on both active and passive motion and in weight bearing and non-weight bearing for BOTH knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examination results should be recorded using VA Form 21-0960M-9, May 2013, Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), or a more recent revision of that DBQ, if possible.

In recording the ranges of motion for the Veteran's knees, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service connected left and right knee disabilities. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report.

 b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so.

The examiner must provide a complete rationale for any opinion expressed.

4.  Schedule the Veteran for a VA examination with an appropriate medical professional regarding his claim for service connection for right and left hip conditions.

The record and a copy of this Remand must be made available to and reviewed by the examiner.

Based on a review of the evidence and examination of the Veteran, the VA examiner should indicate whether the Veteran has a current disability in his right and/or left hip.

If current disabilities are identified, following examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed hip condition had onset in service.

The examiner is also asked to address whether it is at least as likely as not that any currently diagnosed hip condition was (1) caused or (2) aggravated beyond its natural progression by the Veteran's service-connected knee disabilities, specifically chondromalacia of the right and left knees.  In offering this opinion, the examiner is instructed that the phrase "caused by or result of" is insufficient to address the question of aggravation.  If aggravation is found, the examiner is asked to identify the baseline level of severity prior to aggravation or the severity at the first point it is ascertainable after the aggravation began.  

The examiner must provide a complete rationale for any opinion expressed.  If the examiner is unable to provide an opinion without resort to speculation, it should be explained why.

5.  After completing all indicated development, the RO should readjudicate the claims.  If the benefits sought on appeal are not granted to the fullest extent, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  Thereafter, the case should be returned to the Board for further adjudication, if 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.A. §§ 5109B, 7112 (West 2014).


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs