Citation Nr: 18156738 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-03 764A DATE: December 11, 2018 ORDER Entitlement to a rating in excess of 10 percent for tinnitus is withdrawn. REMANDED Entitlement to a rating in excess of 20 percent for status post left achilles surgery with residual strain is remanded. Entitlement to a rating in excess of 20 percent for status post right achilles surgery with residual strain is remanded. Entitlement to an initial rating in excess of 20 percent for status post bilateral achilles tendon rupture with repair, residual tender scar associated with status post right achilles surgery with residual strain is remanded. Entitlement to an initial compensable rating for status post bilateral achilles tendon rupture with repair, residual linear scar associated with status post left achilles surgery with residual strain is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, in March 2018, the Veteran indicated that he wanted to withdraw his appeal for the issue of entitlement to a rating in excess of 10 percent for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to a rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from October 2003 to October 2008, including a tour of duty in Iraq. In March 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to a disability rating in excess of 10 percent for tinnitus Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. During his March 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his claim of entitlement to an increased rating for tinnitus. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. See Hearing Transcript at page 2. The Veteran’s full understanding of the consequences are shown based on the fact that the Veteran was represented and he withdrew the clearly identified issue on the record at his hearing. Further, the Veteran chose not to withdraw the remaining issues on appeal, indicating that he understood the implications of withdrawal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As such, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. REASONS FOR REMAND Although the Board regrets the delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims on appeal. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. §§ 5107 (a), 5103A; 38 C.F.R. § 3.159 (c). During his March 2018 Board hearing, the Veteran testified that he has periodically received outpatient treatment at a private sports clinic in Long Beach, California. However, while a June 2018 disability benefits questionnaire (DBQ) completed by a private practitioner has been associated with the claims file, there are no records of the private outpatient treatment described. Therefore, remand is necessary to obtain any outstanding medical treatment records relevant to the Veteran’s claims. The Board also finds that remand is necessary to afford the Veteran additional VA examinations into his claimed disabilities. With regard to his claims of entitlement to increased ratings for his left and right achilles tendon surgical scars, the Veteran testified that his scars hurt “tremendously” and have caused decreased range of motion, which has resulted discomfort in everyday life and limits prolonged walking, standing, and any type of physical exercise. With regard to his claims of entitlement to increased ratings for his status post left and right achilles surgery with residual strains, the Veteran testified that his symptoms have worsened since his last VA examination in 2014. Specifically, the Veteran testified that his range of motion has decreased and that he has to limit his activities at work because of his achilles tendon disabilities. Overall, the Board finds that the evidence of record suggests the Veteran’s disabilities have worsened since his most recent VA examinations in 2014, and that remand for additional VA examinations to determine the current severity of his disabilities is warranted. The Board notes that in June 2018, the Veteran submitted a private DBQ concerning his achilles tendon disabilities. However, the Board finds the report inadequate for rating purposes because the examiner did not discuss range of motion findings for both active and passive motion and in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain and associate with the claims file any outstanding medical treatment records, including any records of private outpatient treatment. All efforts to obtain additional evidence must be documented in the claims folder and the Veteran must be appraised of the steps taken. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his status post left and right achilles surgery with residual strain disabilities. The examiner must review the Veteran’s entire claims file, and the examination report should note that review. Range of motion studies must include active and passive motion and weight-bearing and non-weight-bearing as well as range of motion measurements of the opposite, undamaged joint (if possible). The examiner must also note any further functional limitations due to pain, weakness, fatigue, incoordination, or other such factors. If there is pain observed on range of motion testing, the examiner must note the point (in degrees) at which pain begins. Additionally, the examiner must specifically express an opinion concerning whether there would be additional limitations on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. 3. Schedule the Veteran for an appropriate VA scar examination to determine the current severity of his service-connected status post bilateral achilles tendon rupture with repair, residual tender scar associated with status post right achilles surgery with residual strain; and status post bilateral achilles tendon rupture with repair, residual linear scar associated with status post left achilles surgery with residual strain. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough examination of the Veteran’s scars. All pertinent symptomatology and findings must be reported in detail. The VA examiner must identify all surgical scars on the Veteran’s left and right achilles tendons. For each scar identified, the examiner must measure the accurate size of the scar and indicate whether such scar is painful, unstable, deep or superficial, or linear or non-linear. The examiner is also asked to determine whether there is any disabling effect(s) caused by the Veteran’s service-connected scars. The examiner should specifically address the Veteran’s statements that his scars have caused tremendous pain and loss of range of motion of the ankle. 4. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran’s claims should be readjudicated based on the entirety of the evidence. With regard to the Veteran’s claims for increased ratings for his status post right and left achilles surgery with residual strain disabilities, it should also be determined if referral for extra-schedular ratings is warranted. If the claims remain denied, the Veteran and his representative should be issued a Supplemental Statement of the Case and afforded an appropriate period of time for response. Thereafter, the claims file should be returned to the Board in accordance with current appellate procedures. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel