Citation Nr: 18151476 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-13 564 DATE: November 20, 2018 ORDER Entitlement to a compensable rating for status-post ruptured left index finger tendon (left index finger disability) is dismissed. Entitlement to a compensable rating for hemorrhoids is dismissed. Entitlement to a compensable rating for a left index finger scar is dismissed. REMANDED Entitlement to an increased rating in excess of 20 percent for left knee instability is remanded. Entitlement to a compensable rating for a left ACL status-post anterior graft and meniscectomy is remanded. Entitlement to a compensable rating for status-post right great toe fracture with osteoarthritis and hallux rigidus is remanded. FINDINGS OF FACT At his November 2017 hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran withdrew the claims for entitlement to increased ratings for a left index finger disability, left index finger scar, and hemorrhoids. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for an increased rating for a left index finger disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for an increased rating for a left index finger scar have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for an increased rating for hemorrhoids have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2010 to April 2011. Entitlement to increased ratings for a left index finger disability, left index finger scar, and hemorrhoids. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 20.204. At the November 2017 hearing before the undersigned, the Veteran and representative, explicitly requested to withdraw the claims related to the ratings for a left index finger disability, left index finger scar, and hemorrhoids. Therefore, there remain no allegations of errors of fact or law for appellate consideration regarding those issues. Accordingly, the Board does not have jurisdiction to review those issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to increased ratings for right toe disability, a left knee disability, and left knee instability, is remanded. With regard to the claims for increased rating, the Veteran was provided the most recent VA examination in August 2015, more than three years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding the claimed disabilities of the left knee and right great toe have been set forth by the Veteran since that examination. When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only are the most recent examinations temporally remote, but the examinations appears to no longer indicate the Veteran’s current level of disability for the left knee and right great toe disabilities. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the claims for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all VA medical records of treatment, to include any hospitalizations, and to especially include those from any VA Medical Center in Tampa, Florida. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from private treatment providers that are not already of record. 3. Then, schedule the Veteran for a VA knee examination to ascertain the current severity of the service-connected left knee disability, to include any limitation of flexion, extension, meniscal pathology, and instability. The examiner must review the claims file and should note that review in the report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the service-connected left knee disability on the Veteran’s occupational functioning and daily activities. The examiner should provide a complete rationale for any opinions provided. The knee examination should include range of motion testing expressed in degrees for both knees for active motion, passive motion, weight-bearing, and nonweight-bearing for both knees. The examiner is specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, painful motion, repetitive motion, incoordination, or on flare up. The examiner is also asked to indicate whether there is recurrent subluxation or lateral instability of the knee, and if so, the severity of any recurrent subluxation or lateral instability. The examiner should describe any knee symptoms due to meniscectomy. The examiner should provide an opinion as to whether there is loss of use of the left leg such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election, with use of a suitable prosthetic appliance. The determination should consider remaining function and whether acts such as balance and propulsion could be accomplished equally well by an amputation with prosthesis. 4. Schedule the Veteran for a VA examination of the service-connected right great toe disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should provide active and passive ranges of motion, and weightbearing and nonweight-bearing ranges of motion, for the right great toe, and should compare to a normal opposed joint where appropriate. The examiner should state whether there is any additional loss of function due to incoordination, fatigability, painful motion, weakened motion, excess motion, repetitive motion, or on flare up. The examiner should state whether there is severe painful motion or weakness of the right foot due to the right great toe disability. The examiner should opine whether a moderate, moderately severe, or severe disability of the right foot is shown due to the right great toe disability. The examiner should state whether there is a severe disability of the right great toe, equivalent to amputation of the right great toe, or equivalent to postoperative resection of the metatarsal head of the right great toe. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel