Citation Nr: 18152408 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 13-03 489 DATE: November 21, 2018 ORDER Entitlement to service connection for degenerative joint disease of the lumbar spine, to include as secondary to the service-connected right knee condition, is dismissed. Entitlement to an evaluation in excess of 70 percent for unspecified depressive disorder is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 1, 2016 is dismissed. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. FINDING OF FACT In October 2018, the Veteran, through his attorney, withdrew claims seeking entitlement to service connection for a lumbar spine condition, an evaluation in excess of 70 percent for unspecified depressive disorder, and entitlement to TDIU prior to September 1, 2016. CONCLUSION OF LAW The criteria for withdrawal of the appeals seeking service connection for a lumbar spine disability, a rating in excess of 70 percent for unspecified depressive disorder, and entitlement to TDIU prior to September 1, 2016 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 honorably in the United States Army from September 1977 to September 1980 and from June 1981 to June 1984. These matters are before the Board of Veterans’ Appeals (Board) on appeal from December 2010, December 2016, and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a hearing before a Veterans Law Judge; a transcript of that hearing is of record. The Veterans Law Judge who conducted the hearing is no longer employed at the Board. In January 2018, the Board sent the Veteran a letter providing him with the opportunity to appear at a Board hearing with another Veterans Law Judge. In October 2018, the Veteran, through his attorney, withdrew his request for a videoconference hearing and requested that his case be considered based on the evidence of record. A January 2017 Board decision remanded the Veteran’s claims for further development. Withdrawal of Appeals 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his attorney, withdrew the appeal in an October 2018 letter. The Veteran’s attorney specifically noted that a withdrawal of the appeals seeking service connection for a lumbar spine condition, an increased rating for unspecified depressive disorder and entitlement to TDIU prior to September 1, 2016 was requested. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. REASONS FOR REMAND Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. Unfortunately, the Board has determined that additional development must occur for this issue before appellate review can proceed. The Veteran has asserted that his left knee disability is secondary to his service-connected right knee disability. He was provided a VA examination for the left knee in April 2017 and a VA addendum opinion was also provided in August 2017. However, as a result of evidence added to the record subsequent to the examination and addendum opinion, the Board finds that the examination report and addendum are not adequate to decide the current claim. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The April 2017 VA examiner opined that the Veteran’s left knee disability is not caused by his right knee disability because his right knee disability has not caused him to walk with an antalgic gait. The rationale was that a weight-bearing joint cannot be adversely affected by a contralateral weight-bearing joint, such as the Veteran’s right knee, unless the service-connected joint would have altered the gait enough to cause abnormal weight transference on the opposite site. The examiner noted that the Veteran did not have an antalgic gait at the time of the examination, nor at examinations in October 2013 and October 2016. In a July 2017 Board decision, the issue of the Veteran’s left knee disability was remanded for a clarifying opinion by the April 2017 VA examiner. In the examiner’s August 2017 VA medical opinion, he affirmed that the Veteran’s left knee disability was less likely than not related to or aggravated by the Veteran’s service-connected right knee disability. The rationale was that despite the Veteran’s right knee buckling from time to time, as reported by the Veteran, it did not happen with enough frequency to have the same effect on the Veteran’s left knee that an antalgic gait would have. Further, the examiner opined that there was no evidence of an antalgic gait during the examination, therefore, there was no reasonable mechanism through which DJD would have developed in the left knee because of the Veteran’s right knee disability. The Veteran attended a hearing before a Decision Review Officer at the RO in October 2017 concerning issues other than the left knee. However, during this hearing, the Veteran gave testimony that he currently walks with a limp about 90 percent of the time. He further indicated that previously he would limp during periods when his right knee was hurting, which at times was for periods of up to six months. Because the April 2017 VA examiner’s opinions are dependent on the absence of an antalgic gait, and the Veteran has subsequently provided testimony that he does have and has had an antalgic gait frequently, a clarifying medical opinion is necessary. The Board also notes that an October 2013 VA examination report indicates that there is no discrepancy in the length of the Veteran’s legs. However, a private medical opinion from November 2017 states that one of the Veteran’s legs is shorter than the other, which is a contributing factor to his bilateral knee symptoms, including his left knee disability. A clarifying medical opinion concerning the length of the Veteran’s legs and whether this has an impact on his left knee disability is also needed. Accordingly, the matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period of October 2017 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include any records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination with the appropriate clinician to evaluate his claim for service connection for a left knee disability, to include as secondary to the service-connected right knee disability. The claims file must be made available to the clinician for review in conjunction with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on examination and review of the pertinent evidence of record, the examiner should provide the following opinions: A. After conducting any necessary testing, indicate whether the Veteran has any leg length discrepancy. B. If it is determined that the Veteran has a leg length discrepancy, then is it at least as likely as not (50 percent or better probability) that any leg length discrepancy is caused or aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) his service-connected right knee disability? In responding to this question, the examiner is asked to discuss the November 2017 opinion from Dr. J.M.D. indicating the Veteran has a leg length discrepancy that causes bilateral symptoms. C. If it is determined that any leg length discrepancy is caused or aggravated by the Veteran’s service-connected right knee disability, then is it at least as likely as not (50 percent or better probability) that any left knee disability, including degenerative arthritis, is caused or aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) the leg length discrepancy, including any associated antalgic gait? In providing an opinion on this question, the examiner is asked to consider the Veteran’s testimony at the October 2017 DRO hearing regarding the frequency of an antalgic gait over the years and currently (pages 11-13). D. If it is determined that there is not a leg length discrepancy or that any leg length discrepancy is not caused or aggravated by the Veteran’s service-connected right knee disability, then is it at least as likely as not (50 percent or better probability) that any left knee disability, including degenerative arthritis, is caused or aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) the Veteran’s service-connected right knee disability, including an antalgic gait? In providing an opinion on this question, the examiner is asked to consider the Veteran’s testimony at the October 2017 DRO hearing regarding the frequency of an antalgic gait over the years and currently (pages 11-13). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel