Citation Nr: 19123715 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 15-10 389A DATE: March 29, 2019 ORDER The appeal of the issue of entitlement to an increased rating for left knee instability, rated as 10 percent disabling prior to June 1, 2017, and as 20 percent disabling thereafter, is dismissed. The appeal of the issue of entitlement to a rating in excess of 10 percent for left knee limitation of flexion is dismissed. The appeal of the issue of entitlement to an initial compensable rating for left knee limitation of extension is dismissed. REMANDED Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a left ankle condition is remanded. FINDINGS OF FACT At a June 2018 hearing before the Board, before the promulgation of a Board decision, the Veteran stated that he wished to withdraw the appeal of his claims of entitlement to a rating in excess of 20 percent for left knee instability from June 1, 2017, a rating in excess of 10 percent for left knee instability from July 20, 2011, an increased rating for left knee limitation of flexion, and an initial compensable rating for left knee limitation of extension. The Veteran’s statement was reduced to writing in the hearing transcript. CONCLUSIONS OF LAW The criteria for withdrawal of the appeal on the issues of entitlement to a rating in excess of 20 percent for left knee instability from June 1, 2017, a rating in excess of 10 percent for left knee instability from July 20, 2011, an increased rating for left knee limitation of flexion, and an initial compensable rating for left knee limitation of extension, are met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1998 to September 1998. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, Veteran stated at a June 2018 Board hearing that he wished to withdraw the appeal of his claims for entitlement to a rating in excess of 20 percent for left knee instability from June 1, 2017, a rating in excess of 10 percent for left knee instability from July 20, 2011, an increased rating for left knee limitation of flexion, and an initial compensable rating for left knee limitation of extension. The Veteran’s statement was reduced to writing in the hearing transcript. As a result, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND Entitlement to Service Connection for Right and Left Ankle Conditions The Veteran is seeking service connection for conditions of his right and left ankles. He contends that he injured his ankles in service when he twisted his right ankle and fell. See June 2018 Board Hearing. At a July 2011 VA joints examination, the examiner noted a diagnosis of left ankle strain and opined that the condition was not secondary to the Veteran’s service-connected left knee condition. A November 2015 VA examiner, however, noted no current pathology to render a diagnosis on either ankle. The Veteran reported instability, but not pain, and no pain was noted on the examination. Nevertheless, the Veteran subsequently reported pain, instability, and crepitus at a July 2018 VA Medical Center appointment. The Veteran also testified to symptoms of pain, weakness, and crepitus at his June 2018 Board hearing. In the absence of a currently diagnosed condition, pain alone may still constitute a disability as contemplated in 38 U.S.C. § 1110, so long as the pain results in functional impairment. Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467, *18-28 (Fed. Cir. Apr. 3, 2018). At June 2018 Board hearing, the Veteran also reported that his private orthopedic doctor, OrthoCarolina, had opined that his ankle conditions were related to his service. The Veteran’s claims file contains an April 2018 opinion by an OrthoCarolina doctor relating a wrist injury to the Veteran’s left knee instability. However, no opinion regarding the Veteran’s ankles is of record. Therefore, before the Board can adjudicate these claims, a remand is necessary to seek the private opinion referenced by the Veteran as his Board hearing, and to afford the Veteran a new VA examination, to include an opinion as to whether the Veteran’s reported ankle pain causes functional impairment. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Contact the Veteran to request the record of a private opinion rendered by OrthoCarolina, and referenced by the Veteran at his June 2018 Board hearing, relating his ankle conditions to service. In addition, make two requests for the record from OrthoCarolina, unless it is clear after the first request that a second request would be futile. 3. After completing the development outlined in Items 1. and 2., schedule the Veteran for a VA examination and opinion on his claims for service connection for right and left ankle conditions. Upon complete review of the claims file and physical examination of the Veteran, the examiner should respond to the following: (a.) Please identify the conditions by medical diagnosis, if applicable. (b.) In the event that the criteria for a diagnosis are not met, the examiner should specifically state whether there is any functional impairment associated with the Veteran’s complaints of ankle pain, weakness, and crepitus. Please complete the “Functional Impact” section of the report of examination. If there is functional impairment, please offer an opinion as to whether it is at least as likely as not that such impairment is associated with the Veteran’s service, to include the alleged in-service injuries in which he twisted his ankles and fell during a physical training run. The examiner must provide a fully articulated medical rational for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel