Citation Nr: 18143006 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 07-03 248A DATE: October 17, 2018 ORDER 1. – 3. The appeal concerning the issues of entitlement to compensation under 38 U.S.C. § 1151 for iatrogenic pneumothorax, atelectasis, and pleuritis is dismissed. REMANDED 4. Entitlement to service connection for post-thoracotomy syndrome as secondary to benign neoplasm of the mediastinum is remanded. 5. Entitlement to service connection for a back scar as secondary to benign neoplasm of the mediastinum is remanded. 6. Entitlement to compensation under 38 U.S.C. § 1151 for post-thoracotomy syndrome is remanded. 7. Entitlement to compensation under 38 U.S.C. § 1151 for an abdominal scar is remanded. 8. Entitlement to compensation under 38 U.S.C. § 1151 for a back scar is remanded. 9. Entitlement to restoration of a 20 percent disability rating for right knee bursitis and chondromalacia (right knee disability), currently rated as 40 percent disabling, is remanded. FINDING OF FACT In June 2018, prior to the promulgation of a Board decision, the Veteran’s representative withdrew the appeal of the issues of entitlement to compensation under 38 U.S.C. § 1151 for iatrogenic pneumothorax, atelectasis, and pleuritis. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to entitlement to compensation under 38 U.S.C. § 1151 for the iatrogenic pneumothorax, atelectasis, and pleuritis issues have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to October 1997. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2010, the RO denied multiple claims for entitlement to compensation under 38 U.S.C. § 1151, as indicated on the title page, and also proposed reducing the rating for the Veteran’s right knee disability from 20 to 10 percent. In January 2011, the RO reduced the rating for the Veteran’s right knee disability from 20 to 10 percent, effective April 1, 2011. In March 2015 and March 2017, the Board remanded the case for additional procedural development. At the time of the last remand, the Board referred the issues of entitlement to service connection for post-thoracotomy syndrome, iatrogenic pneumothorax, atelectasis, pleuritis, abdominal scar, and back scar as secondary to service-connected benign neoplasm of the mediastinum with residual neuropathy of the left upper extremity; the Board also referred the issue of entitlement to a disability rating in excess of 10 percent for the right knee disability. By an August 2017 rating decision, the RO granted service connection for iatrogenic pneumothorax with a noncompensable (zero percent) disability rating and denied service connection for post-thoracotomy pain syndrome, back scar, and pleuritis. The issue of secondary service connection for an abdominal scar was not addressed in this rating decision. The Veteran submitted a November 2017 notice of disagreement (NOD) as to the post-thoracotomy pain syndrome and back scar issues. In this NOD, the Veteran contended that the wrong back scar was addressed in the August 2017 rating decision, as further discussed below. The issue of entitlement to service connection for an abdominal scar as secondary to service-connected benign neoplasm of the mediastinum have been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). In April 2018, the RO increased the right knee disability rating to 40 percent, effective January 24, 2018. Withdrawn Issues 1. Entitlement to compensation under 38 U.S.C. § 1151 for iatrogenic pneumothorax. 2. Entitlement to compensation under 38 U.S.C. § 1151 for atelectasis. 3. Entitlement to compensation under 38 U.S.C. § 1151 for pleuritis. 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. An appeal may be withdrawn by the Veteran or representative on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In a June 2018 written statement, the Veteran’s attorney representative withdrew the appeal as to the issues of entitlement to compensation under 38 U.S.C. § 1151 for iatrogenic pneumothorax, atelectasis, and pleuritis. The Board finds that the Veteran’s withdrawal of these specific issues on appeal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, there remain no allegations of error of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to entitlement to compensation under 38 U.S.C. § 1151 for iatrogenic pneumothorax, atelectasis, or pleuritis, and the appeal concerning these issues is dismissed. REASONS FOR REMAND 4. Entitlement to service connection for post-thoracotomy syndrome as secondary to benign neoplasm of the mediastinum. 5. Entitlement to service connection for a back scar as secondary to benign neoplasm of the mediastinum. The RO denied these two secondary service connection issues in the August 2017 rating decision. As mentioned above, the Veteran submitted a timely November 2017 NOD as to the post-thoracotomy pain syndrome and back scar issues. See 38 C.F.R. § 20.201. A statement of the case (SOC) is required when a claimant protests a determination. 38 C.F.R. §§ 19.26, 19.29. VA has not issued an SOC addressing these two issues. Therefore, remand is required for the issuance of an SOC regarding these two claims. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC must be issued unless the Veteran’s claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the Veteran’s November 2017 NOD as to these two secondary service connection issues. The remanding of these two issues must not be read as an acceptance of jurisdiction over such issues by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC. 38 U.S.C. § 7105; Roy v. Brown, 5 Vet. App. 554 (1993). Therefore, the AOJ should return the Veteran’s claim of entitlement to secondary service connection for post-thoracotomy syndrome and for a back scar to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C. § 7105. The Board notes that, in the November 2017 NOD, the Veteran contends that the wrong back scar was addressed in the August 2017 rating decision. Specifically, the Veteran contends “that the ‘back’ scar he wishes to be service connected is NOT the scar from his back surgery, but rather the surgery that extends from his chest to his back.” The Veteran’s representative reiterated this contention in a September 2018 statement. 6. Entitlement to compensation under 38 U.S.C. § 1151 for post-thoracotomy syndrome is remanded. 7. Entitlement to compensation under 38 U.S.C. § 1151 for an abdominal scar. As discussed in the Board’s March 2017 remand, by a November 2015 rating decision, the RO granted service connection for a benign neoplasm of the mediastinum with residual neuropathy in the left upper extremity. In a January 2016 VA Form 21-526EZ, the Veteran filed claims for service connection for post-thoracotomy syndrome, iatrogenic pneumothorax, atelectasis, pleuritis, abdominal scar, and back scar as secondary to this now service-connected benign neoplasm. The RO failed to adjudicate the Veteran’s claims of entitlement to service connection for post-thoracotomy syndrome and abdominal scar, both as being secondary to the service-connected benign neoplasm of the mediastinum. Once again, the Board must defer consideration of the Veteran’s 38 U.S.C. § 1151 claims for compensation benefits under 38 U.S.C. § 1151 for post-thoracotomy syndrome and abdominal scar as these claims are inextricably intertwined with the secondary service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 8. Entitlement to compensation under 38 U.S.C. § 1151 for a back scar is remanded. Similarly, as discussed above, the Board is remanding the issue of secondary service connection for a back scar, and thus, the Board must defer consideration of the Veteran’s 38 U.S.C. § 1151 claim for a back scar as this claim is inextricably intertwined with such secondary service connection claim. See Harris v. Derwinski, 1 Vet. App. at 183. 9. Entitlement to restoration of a 20 percent disability rating for right knee disability, currently rated as 40 percent disabling. Regarding the restoration of the 20 percent rating for the Veteran’s right knee disability, the Board must again remand this matter for the AOJ to comply with the Board’s March 2015 and March 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has instructed the AOJ to readjudicate the issue after considering whether a 20 percent rating was warranted under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5258 or any other potentially applicable DC. A review of the most recent supplemental statement of the case (SSOC) issued in April 2018 shows that the reduction is listed as an issue, but only a claim for an increased rating for the right knee disability was considered in the discussion. As such, the April 2018 SSOC does not indicate that the AOJ considered this DC when it determined that a reduction of the Veteran’s right knee disability rating was proper during the relevant time period. As discussed in the Board’s March 2017 remand, in January 2008, the Veteran underwent right knee surgery and requested a temporary total rating based on surgical or other treatment necessitating convalescence. He also requested an increased rating for his right knee disability, then rated as 10 percent disabling. In April 2008, the RO granted the temporary total rating and increased the rating for the right knee from 10 to 20 percent, effective after the convalescence period. In January 2011, the RO reduced the rating from 20 to 10 percent, effective April 1, 2011. The basis of the reduction was an increase in range of motion, which the RO wrote warranted a lower rating under 38 C.F.R. § 4.71a, DC 5261, applicable to limitation of extension of the leg. However, as noted by the Veteran’s attorney in a December 2014 statement, the record contains evidence, including a November 2012 VA treatment note, which indicates a possible meniscal tear with pain and locking. Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage, i.e., a torn meniscus, warrants a 20 percent rating if there are frequent episodes of locking, pain, and effusion into the joint. It does not appear that the AOJ considered whether the reduction was proper in light of the possibility of such a rating, and a remand is again warranted for initial AOJ consideration of this theory of entitlement. See Stegall, 11 Vet. App. at 268. Should the RO feel that a retrospective medical examination or opinion would assist in making this determination, such an examination should be scheduled. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The matters are REMANDED for the following actions: 1. Issue an SOC for the issues of entitlement to secondary service connection for post-thoracotomy syndrome and for a back scar and provide the Veteran and his representative with notice of the need to file a substantive appeal to the Board to perfect these claims. 2. Thereafter, and following development and adjudication of the Veteran’s claim for entitlement to secondary service connection for an abdominal scar, readjudicate the claims for entitlement to compensation pursuant to 38 U.S.C. § 1151 for post-thoracotomy syndrome, abdominal scar, and back scar. 3. Readjudicate the claim of entitlement to restoration of a 20 percent rating for the right knee disability during the relevant time period, to include consideration of whether a 20 percent rating is warranted under 38 U.S.C. § 4.71a, DC 5258 or any other potentially applicable DC. If the AOJ finds that a retrospective VA examination or opinion is warranted, schedule such an examination or obtain such an opinion. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Santiago, Counsel