Citation Nr: 1807211	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-14 467	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability. 

2.  Entitlement to service connection for sleep apnea. 

3.  Entitlement to an increased rating in excess of 10 percent for residuals of a traumatic brain injury (TBI), to include headaches, and loss of smell and taste. 


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and T. S.

ATTORNEY FOR THE BOARD

Zi-Heng Zhu


INTRODUCTION

The Veteran served on active duty from December 1963 to September 1966. 

These matters come before the Board of Veterans' Appeals (Board) from rating decisions from January 2012 and June 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

A January 2012 rating decision denied increased rating for TBI.  After further development, the RO proposed and ultimately reduced the rating for TBI from 10 percent to 0 percent in a June 2012 rating decision.  The Veteran appealed that reduction, and a September 2014 rating decision restored the 10 percent rating.  As the reduction was ultimately reinstated, that constitutes a full grant of benefits for the claim regarding the propriety of the reduction.  Therefore, only the claim for an increased rating in excess of 10 percent remains before the Board.   

The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in September 2017.  A transcript of that hearing is of record. 

The issues of entitlement to service connection for a left hip disability and entitlement to an increased rating for TBI are REMANDED to the Agency of Original Jurisdiction.


FINDINGS OF FACT

In the September 2017 hearing before the undersigned, prior to the promulgation of a decision, the Veteran withdrew the claim for service connection for sleep apnea.  

CONCLUSION OF LAW

The criteria for withdrawal of the appeal for service connection for sleep apnea have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

At a the Veteran's September 2017 Board hearing, the Veteran, through his representative, notified the undersigned Veterans Law Judge that he no longer wanted to proceed with appeals for service connection for sleep apnea.  The Board finds that the September 2017 testimony constitutes a withdrawal of that claim on appeal. 

The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed.  38 U.S.C. §7105 (2012).  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R §§20.202, 20.204(b) (2017).  Withdrawal may be made by the claimant or the authorized representative.  38 C.F.R. §20.204 (c) (2016).

As a result of the Veteran's withdraw of the appeals, no allegation of error of fact or law remains before the Board for consideration with regard to that claim.  Therefore, the Board finds that the Veteran has withdrawn his appeal for service connection for sleep apnea, and Board does not have jurisdiction to review that claim.  Therefore, the claim is dismissed.


ORDER

The appeal for entitlement to service connection for sleep apnea is dismissed.




REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the remaining claims.  38 U.S.C.A. §5103A (West 2014); 38 C.F.R. §3.159 (2017).

The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §5103A (d) (West 2014); 38 C.F.R. §3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

With regard to the claim for service connection for a left hip disability, the Board finds that the April 2012 VA examination provided to the Veteran to assess the nature and etiology of the left hip to be incomplete.  Specifically, the Board notes that while the examiner ultimately determined that there was no medical basis to demonstrate that any left hip condition was caused by already service-connected left knee disability, the examiner did not provide any opinion or rationale with regard to aggravation.  

The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. §3.310 (2017).  Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable.  38 C.F.R. §3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Therefore, as the April 2012 examiner did not address aggravation in the opinion for the claimed disabilities, that makes the examination incomplete, and the Board must remand the claim for further developments to fulfill the VA's duty to assist the Veteran.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

With regard to the claims for an increased rating for residuals of TBI, the Board finds that the Veteran was last provided an examination in November 2012, more than five 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, the Board notes that claims of a worsening condition regarding the residuals of his TBI, to include increased headache, and more intense loss of smell and taste, 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 is the last examination remote, but the examination appears to no longer indicate the Veteran's current level of disability and functional loss.  Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claim for increased ratings for residuals of his TBI.  Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file any outstanding VA treatment records relevant to the claims. 

2.  Schedule the Veteran for a VA joints examination with a qualified medical examiner.  The examiner must review the claims file and should note that review in the report.  The examiner should provide an opinion regarding the nature and etiology of a left hip disability, to include residuals of a left hip replacement.  Any additional tests that the examiner deems necessary should be performed.  The rationale for all opinions expressed should be provided.  Specifically, the examiner should provide the following opinions: 

(a) Is it at least as likely as not (50 percent probability or greater) that any left hip disability diagnosed during the pendency of the appeal is related to service or any event, disease, or injury during service?

(b) Is it at least as likely as not (50 percent probability or greater) that any left hip disability diagnosed during the pendency of the appeal is due to or the result of any service-connected disability, to specifically include a left knee disability?

(c) Is it at least as likely as not (50 percent probability or greater) that any left hip disability diagnosed during the pendency of the appeal has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability, to specifically include a left knee disability?

(d) Is it at least as likely as not (50 percent probability or greater) that left hip arthritis manifested within one year following separation from service?

3.  Schedule the Veteran for a VA examination for service-connected residuals of TBI, to determine the nature and severity of residuals of his TBI and all associated symptoms and manifestations.  The examiner should be conducted by an appropriately qualified TBI examiner.  The examiner must review the claims file and should note that review in the report.  Any and all necessary evaluations, studies, and tests should be accomplished.  The examiner must review the claims file and should note that review in the report.  

4.  Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs