Citation Nr: 1806449 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-04 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left knee/leg disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to a service-connected right knee disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for residuals of an in-service head injury other than a cervical spine disability, to include headaches. 5. Entitlement to service connection for obstructive sleep apnea. 6. Entitlement to a rating in excess of 30 percent for a right knee disability. REPRESENTATION Veteran represented by: Douglas E. Sullivan, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD EM Lederman, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Marine Corps from April 1991 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011 and May 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes a June 2017 rating decision denied, among other things, entitlement to a total disability rating based on individual unemployability (TDIU). While acknowledging that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim, in Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011), the Court held that it is permissive for VA to address a claim for TDIU independently of other claims. Here, the Veteran has initiated an appeal of the separately adjudicated TDIU claim, which the RO is in the processing of addressing. Therefore, the Board finds it does not have jurisdiction over the claim at this time. The Board has recharacterized the claim of entitlement to service connection for residuals of a traumatic brain injury (TBI) as reflected on the title page to better reflect the evidence of record. The issues of entitlement to service connection for a left knee/leg disability and a bilateral hip disability are addressed below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the February 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for a left knee/leg disability and a bilateral hip disability. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal concerning the issues of entitlement to service connection for a left knee/leg and bilateral hip disabilities, to include as secondary to a service-connected right leg disability, are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. Withdrawal may be made in writing or on the record at a hearing by the veteran or by an authorized representative. 38 C.F.R. § 20.204. The Veteran's perfected appeal included a claim of entitlement to service connection for a left leg disability, as secondary to a service-connected right leg disability and service connection for a bilateral hip disability, as secondary to a service-connected right leg disability. However, the Veteran and his representative expressly withdrew these issues from appellate consideration on the record at the beginning of the February 2017 Board hearing. See February 2017 Hearing Transcript (Tr.) at 2. As there is no allegation of error of fact or law for Board consideration on these issues, the Board does not have jurisdiction to consider the appeal of these matters, and they must be dismissed. ORDER The appeal concerning the issue of entitlement to service connection for a left leg disability, as secondary to a service-connected right leg disability, is dismissed. The appeal concerning the issue of entitlement to service connection for a bilateral hip disability, as secondary to a service-connected right leg disability, is dismissed. REMAND Right Knee Disability Regarding the Veteran's claim for an increased rating for his right knee disability, the Board does not have an adequate examination that demonstrates the Veteran's post-surgical disability picture. Although he submitted a March 2017 private examination report, however, it is not fully completed. Thus, in order to more accurately reflect the current level of the Veteran's disability, an updated examination is necessary. Cervical Spine Injury/Residuals of an In-Service Head Injury The Veteran was subject to two VA examinations for his claimed cervical spine disability, both of which relied on inaccurate information for the rationale behind negative nexus opinions. The March 2012 VA examiner claimed that there were no service treatment records (STRs) showing diagnosis or treatment for the neck injury while the Veteran was still in service, when in fact March 1995 STRs demonstrate a neck injury after diving into pool striking head flat on bottom. See March 1995 STRs. The November 2015 VA examiner discussed "remote strains" that the Veteran may have incurred, without addressing the actual injury from hitting his head at the bottom of the pool during active duty and how that may or may not have caused his current neck problems. Additionally, while headaches were diagnosed in relation to his claim for residuals of a head injury, no nexus opinion was rendered. Thus, on remand, new opinions must be obtained. Obstructive Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea. The Veteran and his wife have made lay statements regarding his snoring and gasping for breath during and shortly after service. See February 2017 Hearing tr. at 24-25. He also indicated that his younger brother told him that he snored. See Id. Post-service treatment records include testing for and treatment of obstructive sleep apnea. See August 2011 treatment records (March 2017 Medical treatment records at 58). There is not a medical opinion of record concerning whether the Veteran's sleep apnea is related to service. Thus, a nexus opinion must be obtained on remand. Any outstanding VA and private treatment records should also be secured on remand. The Veteran's service personnel records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records. 2. Obtain all outstanding VA treatment records. 3. With any necessary assistance from the Veteran, identify and obtain any relevant outstanding private treatment records. 4. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's right knee/leg due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 5. Then obtain an addendum opinion from a physician to determine the etiology of the Veteran's cervical spine disability, headaches, and obstructive sleep apnea. No examination of the Veteran is needed, unless the examiner determines otherwise. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner. The examiner is requested to address the following: (a) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine disability, including strain and degenerative arthritis, had its onset during service or is otherwise related to service, to include as a result of the Veteran striking his head on the bottom of a pool in March 1995? In addressing this question, please specifically discuss the impact of the March 1995 injury, as well as the Veteran's complaints of continuous neck symptoms since that time. (b) Is it at least as likely as not (50 percent or greater probability) that obstructive sleep apnea had its onset during service or is otherwise related to service? In addressing this question, please discuss and accept as credible the February 2017 Hearing testimony from the Veteran and his wife regarding his snoring and gasping for breath while sleeping, during and immediately after his exit from service. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed tension headaches had their onset in service or are otherwise the result of service, to include as a result of the Veteran striking his head on the bottom of a pool in March 1995? In addressing this question, please discuss the Veteran's reports of continuous headaches since the in-service head injury. Please provide a robust rationale for any conclusion reached. If you cannot provide the requested opinions without resorting to speculation, provide a supporting rationale for this conclusion. 6. Then, after taking any additional development deemed necessary, readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs