Citation Nr: 1804750	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-03 188	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

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

2.  Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a right knee arthroplasty performed at a VA medical facility.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from December 1955 to June 1956; and from March 1957 to March 1960.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the RO.  A transcript of the hearing has been associated with the Veteran's file.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017).  

The bilateral hearing loss claim is dismissed below.  The 38 U.S.C. § 1151 claim is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the Veteran if any action, on his part, is required.


FINDING OF FACT

During his October 2017 Board hearing, the Veteran withdrew his claim for entitlement to a compensable rating for bilateral hearing loss.





CONCLUSION OF LAW

The criteria are met for withdrawal of the Veteran's substantive appeal concerning a compensable rating for bilateral hearing loss.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Withdrawn Claim 

During his October 2017 Board hearing, the Veteran withdrew his appeal for a compensable rating for bilateral hearing loss.  Hearing Transcript, p. 3.  According to 38 C.F.R. § 20.204 (b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim or claims being withdrawn.  The Board observes that the hearing since has been transcribed; thus it has been reduced to writing.  38 C.F.R. § 20.204 (b).  The transcript includes the name of the Veteran, the applicable claim number, and the Veteran's statement/testimony that he wished to withdraw this claim.  And since the Board had not yet issued a decision concerning this claim, the criteria are met for withdrawal of the appeal of this claim.  See id. 

When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition.  See 38 U.S.C. § 7105 (d).

Accordingly, further action by the Board concerning the claim of entitlement to a compensable rating for bilateral hearing loss is not warranted, and the appeal of this claim is dismissed.  Id.



ORDER

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


REMAND

The Veteran seeks compensation under 38 U.S.C. § 1151 for residuals of right knee arthroplasty he contends that he suffered as a result of a right knee replacement on October 10, 2008 at the VA Medical Center in Houston, Texas. 

A medical opinion was provided in May 2011, but not all of the relevant questions were answered concerning a claim for compensation under the provisions of 38 U.S.C. § 1151.  Specifically, the issue that still needs to be resolved is whether the Veteran's residual, namely a partial intraoperative MCL tear, that was reportedly caused by the right knee total replacement surgery was directly caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or whether it was caused by an event not reasonably foreseeable.  This matter should be resolved on remand by the provision of another medical opinion.

Finally, although the examiner makes reference to the informed consent obtained for the October 2008 surgery, a copy of the informed consent document for the October 2008 right knee surgery performed by VA does not appear to have been associated with the claims file.  Therefore, this matter should also be remanded so that a copy of the informed consent for the October 2008 procedure may be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims file a copy of the informed consent for the October 2008 right knee surgery performed by VA.

2.  Thereafter, schedule the Veteran for the appropriate examination with a physician addressing the Veteran's 38 U.S.C. § 1151 claim with respect to residuals from the right knee arthroplasty performed in October 2008.  The examiner should review the claims folder in conjunction with the examination. 

The examiner should provide opinions as to the following: 

(a)  Are the Veteran's residuals from the partial intraoperative MCL tear the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in conducting a right knee replacement on October 10, 2008? 

(b)  In the course of the October 10, 2008 right knee replacement, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? 

(c)  Was the proximate cause of the partial intraoperative MCL tear an event not reasonably foreseeable, i.e., would a reasonable health care provider have considered a partial intraoperative MCL tear to be an ordinary risk of the treatment at issue? 

A complete rationale for any opinion expressed should be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case.  In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason.  

3.  Finally, readjudicate the claim on appeal based on all relevant evidence submitted since the September 2017 Supplemental Statement of the Case (SSOC). If the benefit remains denied, issue the Veteran and his representative a SSOC and allow for a reasonable period to respond.

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 REMAND 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 (2012).


____________________________________________
M. E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs