Citation Nr: 1807331	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  13-35 445	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include as secondary to a service-connected disability.

2.  Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, prior to May 28, 2014.

3.  Entitlement to a rating in excess of 40 percent for status post right knee replacement, from July 1, 2015.

4.  Entitlement to an effective date earlier than January 20, 2008, for the grant of service connection for degenerative joint disease of the right knee on the basis of clear and unmistakable error in a May 1988 rating decision.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1975 to April 1976.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA).  In April 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  The case was remanded to schedule the Veteran for a Board hearing in June 2016.  

The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At his hearing in November 2017, and prior to a promulgation of a decision on the appeal, the Veteran withdrew his appeal as to the issues of entitlement to ratings in excess of 10 percent for degenerative joint disease of the right knee, in excess of 40 percent for status post right knee replacement, and for an effective date earlier than January 20, 2008, for the grant of service connection for degenerative joint disease of the right knee.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal for entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, prior to May 28, 2014, by the appellant have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for withdrawal of an appeal for entitlement to a rating in excess of 40 percent for status post right knee replacement, from July 1, 2015, by the appellant have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

3.  The criteria for withdrawal of an appeal for entitlement to an effective date earlier than January 20, 2008, for the grant of service connection for degenerative joint disease of the right knee on the basis of clear and unmistakable error in a May 1988 rating decision by the appellant have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

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 (2012).  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 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

At his November 2017 personal hearing, the appellant has withdrawn his appeal for entitlement to ratings in excess of 10 percent for degenerative joint disease of the right knee, in excess of 40 percent for status post right knee replacement, and for an effective date earlier than January 20, 2008, for the grant of service connection for degenerative joint disease of the right knee.  The Veteran's statement, once transcribed as part of the record of the hearing, indicates his intention to withdraw the appeal as to these issues and satisfies the requirements for the withdrawal of a substantive appeal.  See Tomlin v. Brown, 5 Vet. App. 355 (1993) (holding that a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a notice of disagreement within the meaning of 38 U.S.C.A. § 7105 (b)).  Hence, there remain no allegations of errors of fact or law for appellate consideration of these issues.  Accordingly, the Board does not have jurisdiction to review the appeal as to these matters and they are dismissed.


ORDER

The appeal for entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, prior to May 28, 2014, is dismissed.

The appeal for entitlement to a rating in excess of 40 percent for status post right knee replacement, from July 1, 2015, is dismissed.

The appeal for entitlement to an effective date earlier than January 20, 2008, for the grant of service connection for degenerative joint disease of the right knee on the basis of clear and unmistakable error in a May 1988 rating decision is dismissed.






	(REMAND ON NEXT PAGE)



REMAND

The Veteran argues that his depressive disorder was caused or aggravated by his service connected knee disability.

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. §  3.310 (2017). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability.  Id.; Allen v. Brown, 7 Vet. App. 439 (1995).

An October 2013 VA examination report provided diagnoses of adjustment disorder with anxious mood and panic disorder without agoraphobia and found that they were not due to military service or a service-connected disability.  Reference was made to a June 2012 VA treatment report from Dr. J.K.M. which noted that the Veteran had right knee pain leading to brief fluctuating periods of dysphoria without having developed to a progressive of persistent dysphoric state.  However, in a May 2017 statement, Dr. J.K.M., the Veteran's treating psychiatrist, indicated that it was as likely as not that his chronic knee pain had stimulated exacerbations of his major depression.  It remains unclear if the exacerbations resulted in an actual increase in disability for any specific period of time.

VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2016); see also El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)).  The Board finds that an additional medical opinion is required.  Up-to-date VA treatment records should also be obtained.




Accordingly, the case is REMANDED for the following action:

1.  Obtain all pertinent VA medical records not yet associated with the appellate record.

2.  Obtain a clarifying VA medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has an acquired psychiatric disorder that:

a. had its onset in service, or
b. is etiologically related to his active service, or
c. was caused by his service-connected right knee disability, or
d. was aggravated by his service-connected right knee disability, to include symptoms of chronic pain and the overall debilitating effects of the knee disability.  

The examiner must acknowledge review of the pertinent evidence of record, to include the May 2017, October 2013, and June 2012 VA medical opinions.  All necessary examinations, tests, and studies should be conducted.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

3.  Thereafter, the AOJ should address the issue remaining on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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 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).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs