Citation Nr: 18154098 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-14 644A DATE: November 29, 2018 ORDER The appeal seeking entitlement to non-service-connected disability pension benefits is dismissed. REMANDED Entitlement to service connection for residuals of a left shoulder injury is remanded. Entitlement to service connection for residuals of a right knee injury is remanded. FINDING OF FACT In correspondence received on September 22, 2017, the Veteran submitted a request to withdraw his appeal as to the issue of entitlement to non-service-connected disability pension benefits. CONCLUSION OF LAW The Veteran’s claim for entitlement to non-service-connected disability pension benefits is dismissed. 38 U.S.C. §§ 511(a), 7104, 7105, 7108; 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from January 1976 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2011 decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for residuals of a left shoulder and right knee injury and entitlement to non-service-connected disability pension benefits. The Veteran and his sister appeared and testified at a video-conference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of that hearing is associated with the claims file. Entitlement to non-service-connected disability pension benefits 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 submitted correspondence received on September 22, 2017, in which he stated he wished to “cancel” his appeal as to non-service-connected disability pension, but continue his appeal as to service-connected benefits. The Board interprets the Veteran’s statement as a clear expression that he does not wish to proceed with his appeal as to the issue of entitlement to non-service-connected disability pension benefits and would like to withdraw that appeal. The Board’s interpretation of the Veteran’s correspondence is supported by the fact that, a month after submitting his request to cancel his appeal, the Veteran filed a new application for non-service-connected disability pension indicating his belief that he had no appeal pending anymore. Thus, the Board accepts his September 2017 correspondence as a withdrawal of the appeal as to the non-service-connected disability pension benefits issue only. Hence, the Board finds there remain no allegations of errors of fact or law for appellate consideration as to the issue of entitlement non-service-connected disability pension benefits. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND Entitlement to service connection for residuals of left shoulder and right knee injury is remanded. The Veteran contends he injured his left shoulder and right knee during active service in a motor vehicle accident in which the vehicle he was driving went off a mountain top. See Board hearing transcript pp. 3-4. He reported he did not receive any treatment for these conditions during service but first sought treatment approximately a year after his separation from service at VA. He further stated that had not sought continuous treatment for these conditions and, in fact, was not receiving current treatment for them. However, he testified that he has limitations of his left shoulder and right knee, especially when it gets cold outside, and that he has had these problems since the accident in service. VA treatment records from 2011 to 2015 do not show any treatment or diagnoses for disorders of the left shoulder and right knee. However, they do show the Veteran’s report on a review of systems in June 2011 of having left shoulder and right knee pain during cold weather, which is consistent with his testimony at the May 2017 Board hearing. They also show he has a diagnosis of cervical spine degenerative disc disease with radiation into his shoulders and, therefore, any shoulder complaints have been related to this condition rather than a separate shoulder disorder. The Veteran has not been afforded VA examinations directly related to his service connection claims. However, in conjunction with his pension claim, he underwent an examination in December 2011 at which he reported being in a motor vehicle accident while in the military in 1976 in which his vehicle rolled over causing injury to his neck (rather than his left shoulder) and right knee. The Veteran reported his current right knee symptoms consisted of intermittent stiffness and pain that develops during cold, damp weather or when walking greater than 3 miles that subsides spontaneously after three to four days. He denied impairment of range of motion, no locking or giving out. As indicated, he did not report an injury to his left shoulder but to his neck. He reported that he experienced pain in the posterolateral aspect of the neck that radiates down to the dorsal aspect of both shoulders upon exposure to cold, damp weather or extremely cold weather. However, between attacks, he reported being asymptomatic. The examiner diagnosed a mild right knee strain based upon a finding of limitation of flexion to 125 degrees due to tightness and discomfort at that degree. The examiner also diagnosed cervical spine degenerative disc disease based upon X-ray findings of such although the physical examination was essentially normal. Notably after this examination, the Veteran sought and was denied service connection for a cervical spine disability. The RO has denied service connection for residuals of a left shoulder and right knee injury on the basis that there is nothing shown in service to support the in-service incurrence of an injury. However, although the RO is correct that there is no treatment for a left shoulder or right knee injury in service, the service treatment records do show the Veteran was treated in November and December 1976 for complaints of an injury to the back after he was involved in a “military vehicle accident.” Consequently, the service treatment records corroborate the Veteran’s report that he was involved in a motor vehicle accident during his active service. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that there is sufficient evidence to trigger VA’s duty to assist the Veteran in obtaining a VA examination in this case to determine whether the Veteran has a left shoulder and/or right knee disability that is related to his military service, and specifically the motor vehicle accident incurred therein. As the Board is remanding for an examination, further development to update the Veteran’s treatment records should also be conducted. At the May 2017 Board hearing, the Veteran reported he was in a nursing facility because of a recent hospitalization and there was a question as to whether he was receiving physical therapy there on his knees. It is not clear whether this was a VA or private facility. Thus, the Veteran should be asked for a release for any private physicians or facilities who have treated him for his claimed conditions as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2015 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private physicians or medical facilities who have treated him for his left shoulder and/or right knee. Make two requests for the authorized records from all identified providers unless it is clear after the first request that a second request would be futile. (Continued on the next page)   3. After all available records are associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder and right knee disorders the Veteran may currently have. The examiner must opine whether it is at least as likely as not that each diagnosed current disability is related to an in-service injury, event, or disease, including the “military vehicle accident” incurred in November 1976 as shown in his service treatment records. The examiner must also consider and discuss the Veteran’s lay statements as to onset and continuity of symptoms since service. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow