Citation Nr: 18142707 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-43 760 DATE: October 17, 2018 ORDER Entitlement to service connection for a respiratory disorder, claimed as asbestosis is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial compensable disability rating for left knee chondromalacia patella is remanded. INTRODUCTION The Veteran served on active duty from July 1998 to October 2003. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT In September 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal for entitlement to service connection for a respiratory disorder, claimed as asbestosis. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for a respiratory disorder, claimed as asbestosis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017).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 veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204 (b). In the course of his September 2016 Board hearing, the Veteran indicated he wished to withdraw his pending appeal for entitlement to service connection for a respiratory disorder, claimed as asbestosis. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran’s appeal, and the issue must be dismissed. REASONS FOR REMAND The Board is of the opinion that additional development is required before the remaining claims on appeal are decided. Increased Rating Initially, the Board notes that during his September 2016 Board hearing the Veteran asserted his left knee disability is worse than currently evaluated. He most recently underwent a VA examination to assess this disability in June 2013. As there is evidence of a worsening of the disability since the last VA examination, which was performed several years ago, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Further, in a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. As such, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. The June 2013 VA examiner failed to conduct Correia compliant testing. Also, in a recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran’s reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. In this case, the Veteran reported flare-ups of knee pain; however, the June 2013 examiner failed to state what information and evidence was considered, and explain whether that evidence permitted the examiner to offer an estimation of the functional loss during flare-ups. Therefore, a remand is also necessary to elicit relevant information as to the Veteran’s musculoskeletal flares, to include the additional functional loss due to flares based on all evidence of record-to specifically include the Veteran’s lay information-or explain why, with this information, such an estimation cannot be offered. Based on the foregoing, the Board finds a new examination is required to fully assess the Veteran’s left knee disability. Service Connection Claims To date, the Veteran has not been afforded a VA examination in response to his hypertension and sleep apnea claims. A review of the Veteran’s STRs does not show he was treated for these disabilities in service; however, during his September 2016 Board hearing the Veteran indicated that he was informed of his loud snoring during his deployments to Pakistan and Afghanistan. He indicated that he believed this represented the onset of his sleep apnea. The Veteran also indicated that as a result of his left knee disability he has experienced an inability to exercise. He explained that as a result of his deconditioned state, he believes he developed hypertension. A review of his outpatient treatment notes from the Little Rock VAMC show he has been diagnosed with both obstructive sleep apnea and hypertension. Based on the foregoing, the Board finds VA examinations and medical opinions are necessary to address these issues. The Veteran did undergo a VA PTSD examination in June 2013. At that time, the examiner found that a review of the chart and clinical interview did not show sufficient evidence to establish the diagnostic criteria for PTSD or any other mental health disorder. A review of the Veteran’s outpatient treatment notes from the Little Rock VAMC show that, since that time, the Veteran has been diagnosed with an adjustment disorder with depressed mood. He has also been noted to be experiencing PTSD clinical symptoms. During his September 2016 Board hearing the Veteran indicated his belief that his current psychiatric impairments were either the result of his experiences during his deployments, or alternatively, were the result of his service-connected left knee disability. Since additional evidence has been received establishing a current diagnosis of acquired psychiatric disorders, the Board finds a new examination is necessary to obtain medical opinions addressing this matter. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, these matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. 3.159 (e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected left knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. Also, afford the Veteran a VA examination by an examiner to address the etiology of the Veteran’s claimed sleep apnea and hypertension disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran’s sleep apnea and hypertension at least as likely as not (a 50 percent probability or greater) originated during his period of active service or are otherwise etiologically related to his active service. With respect to the Veteran’s hypertension, the examiner should also state whether that disability at least as likely as not (a 50 percent probability or greater): a) was caused by his service-connected left knee disability; or b) was permanently worsened by his service-connected left knee disability. The examiner(s) must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 4. The Veteran should also be afforded an examination to determine the etiology of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran’s pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. A diagnosis of PTSD due at least in part to fear of hostile military or terrorist action during active service should be confirmed or ruled out. If the examiner determines PTSD has not been present during the period of the claim, he or she should explain why a diagnosis of PTSD is not warranted. In this regard, the examiner should fully discuss all relevant evidence, to specifically include the Veteran’s reports of being in fear while deployed to Pakistan and Afghanistan, as well as his outpatient treatment reports showing symptoms consistent with PTSD. If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis. With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service. Additionally, with respect to any acquired psychiatric disorder other than PTSD, the examiner must also state whether that disability at least as likely as not (a 50 percent probability or greater): a) was caused by his service-connected left knee disability; or b) was permanently worsened by his service-connected left knee disability. A complete rationale for all proffered opinions must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel