Citation Nr: 18148385 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-34 019 DATE: November 7, 2018 ORDER The appeal as to the issue of entitlement to an earlier effective date prior to March 14, 2005 for increased evaluation of 10 percent for posttraumatic patellofemoral arthritis, left knee, is dismissed. The appeal as to the issue of entitlement to a total combined evaluation in excess of 30 percent from March 14, 2005 and in excess of 50 percent from December 16, 2013 is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for posttraumatic patellofemoral arthritis, left knee, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of the Board’s decision on appeal, the Veteran withdrew his appeal as to the issue of entitlement to an earlier effective date prior to March 14, 2005 for increased evaluation of 10 percent for posttraumatic patellofemoral arthritis, left knee. 2. Prior to the promulgation of the Board’s decision on appeal, the Veteran withdrew his appeal as to the issue of entitlement to a total combined evaluation in excess of 30 percent from March 14, 2005 and in excess of 50 percent from December 16, 2013. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appeal with respect to the issue of entitlement to an earlier effective date prior to March 14, 2005 for increased evaluation of 10 percent for posttraumatic patellofemoral arthritis, left knee, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for the withdrawal of the appeal with respect to the issue of entitlement to a total combined evaluation in excess of 30 percent from March 14, 2005 and in excess of 50 percent from December 16, 2013 have been met. 38 U.S.C. § 710 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1976 to June 1998. The Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge in October 2016.   1. Entitlement to an earlier effective date prior to March 14, 2005 for increased evaluation of 10 percent for posttraumatic patellofemoral arthritis, left knee 2. Entitlement to a total combined evaluation in excess of 30 percent from March 14, 2005 and in excess of 50 percent from December 16, 2013 Generally, the Board’s jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105, 38 C.F.R. § 21.200. 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. 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). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). In the present case, prior to and during the October 2016 Board hearing, the Veteran indicated that he was withdrawing the issues regarding an earlier effective date prior to March 14, 2005 for increased evaluation of 10 percent for posttraumatic patellofemoral arthritis, left knee, and a total combined evaluation in excess of 30 percent from March 14, 2005 and in excess of 50 percent from December 16, 2013. Based upon the pre-hearing discussion and the hearing testimony, the Board finds the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the claims listed above. See Acree, 891 F.3d at 1009. Accordingly, there no longer remains any allegation of fact or law for appellate consideration regarding those claims and, consequently, the Board does not have jurisdiction to review the claims. They are, therefore, dismissed. REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent for posttraumatic patellofemoral arthritis, left knee, is remanded. The Veteran was afforded VA examination regarding his left knee in June 2014 ; however, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the examination does not contain passive range of motion measurements or pain on weight-bearing testing. Additionally, while the examination reflects that the Veteran reported flare-ups, the examiner did not provide any estimate regarding limitation of range of motion during flare-ups. Additionally, the Veteran reported worsening left knee pain and underwent a knee x-ray in August 2018 showing calcifications in the proximal syndesmotic tib-fib ligaments and vascular calcifications posterior to the left proximal tibial diaphysis. Thus, there may have been a worsening in symptomatology regarding his left knee disability and the Board finds that a remand is necessary in order to obtain an adequate VA examination. Prior to obtaining a new VA examination, any outstanding San Antonio Military Treatment Facility records as well as VA treatment records should be obtained. The Veteran has submitted records from San Antonio Military Treatment Facility dated in August 2018. The matter is REMANDED for the following actions: 1. Obtain outstanding records of any treatment from the San Antonio Military Treatment Facility as well as any outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must test the Veteran’s left knee active motion, passive motion, and pain with weight-bearing and without weight-bearing, as well as that of the opposite joint. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living.   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel