Citation Nr: 18145629 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 15-25 490 DATE: October 30, 2018 ORDER The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability is dismissed. The issue of entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, left knee, degenerative arthritis is dismissed. FINDINGS OF FACT 1. In a written statement dated in October 2018, received by VA prior to the promulgation of a decision in the present appeal, the Veteran withdrew his appeal with respect to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability. 2. On record at a June 2017 Decision Review Officer (DRO) hearing, the Veteran withdrew his appeal with respect to the issue of entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, left knee, degenerative arthritis. CONCLUSIONS OF LAW 1. With respect to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability, the criteria for withdrawal of the Veteran’s Substantive Appeal have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. With respect to the issue of entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, right knee, degenerative arthritis, the criteria for withdrawal of the Veteran’s Substantive Appeal have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran initially requested a hearing before the Board, but withdrew his request prior to the hearing. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability. 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a written statement dated in October 2018, as well as prior to the promulgation of a decision in the present appeal, the Veteran, through his attorney, withdrew his appeal of the issue of whether new and material evidence had been received to reopen claim for service connection for a right ankle disability; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal with respect thereto and the appeal of this claim is therefore dismissed. 2. Entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, left knee, degenerative arthritis. 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. On record at a June 2017 Decision Review Officer (DRO) hearing, as well as prior to the promulgation of a decision in the present appeal, the Veteran, represented at the hearing by his attorney, withdrew his appeal with respect to the issue of entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, left knee, degenerative arthritis. At the DRO hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew this issue. The DRO clearly identified the withdrawn issue, and the Veteran’s attorney affirmed that he was requesting a withdrawal as to this appeal. See Hearing Transcript at pp. 2-3. The appellant was represented by an attorney at the hearing, and had full understanding of the consequences of withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), at 1014 n.4. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal with respect thereto and the appeal of this claim is therefore dismissed. REMANDED Entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, right knee, degenerative arthritis, is remanded REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome, right knee, degenerative arthritis. The Veteran last received a VA examination to address the severity of the service-connected right knee disability in January 2017. A review of the examination report reflects that the Veteran described flare-ups manifested by increased pain, heat and swelling in the right knee. The examiner remarked that the Veteran’s reports of flare-ups were consistent with his statements describing functional loss, but then stated that she could not quantify any additional loss of range of motion without resorting to “pure speculation.” In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) the U.S. Court of Appeals for Veterans Claims (Court) held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare and that any such opinion cannot be based on the insufficient knowledge of the specific examiner). Here, the examiner noted that the Veteran described functional loss during a flare, but did not elicit an adequate of history from the Veteran as to the frequency, duration, characteristics, severity and/or functional loss during any flare-ups. Accordingly, the claim is remanded to afford the Veteran a new VA examination. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the severity of the service-connected for patellofemoral pain syndrome, right knee, degenerative arthritis. The examiner must be provided access to the claims file, including a copy of this remand. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. The examiner should: (a) Conduct range of motion testing of the Veteran's knees, expressed in degrees in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. (b) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the right knee. If pain on motion is observed, the VA examiner should indicate the point at which pain begins. (c) The VA examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his right knee due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the VA examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak