Citation Nr: 20011963 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 16-37 135 DATE: February 12, 2020 ORDER Entitlement to a compensable evaluation of residual scars, status post left thumb surgery, has been withdrawn. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for restless leg syndrome is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. FINDING OF FACT During a September 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal for entitlement to a compensable evaluation of residual scars, status post left thumb surgery. CONCLUSION OF LAW The criteria for withdrawal of entitlement to a compensable evaluation of residual scars, status post left thumb surgery, by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1980 and from March 1982 to September 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. The undersigned Veterans Law Judge granted a motion to hold the record open for 30 days for submitting additional evidence. Hearing transcript, page 2. The 30-day period has now expired. 38 C.F.R. § 20.709. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran and his authorized representative indicated at the Veteran’s September 2019 Board hearing that the Veteran wished to withdraw his appeal as to the issue of entitlement to a compensable evaluation of residual scars, status post left thumb surgery. The transcript of that hearing is on file. Therefore, the Veteran has withdrawn his appeal as to this issue, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. REASONS FOR REMAND The Veteran contends that he is entitled to service connection for a right knee disability and restless leg syndrome. The Veteran reports experiencing symptoms, including swelling, and indicated his personal physician has opined that his restless leg syndrome may be due to his knee and hip disabilities. During the September 2019 Board hearing, the Veteran testified that in his first enlistment in 1977 he was in Germany and did a lot of running on cobblestones and ice and had fallen several times. He said while on active duty he suffered a fracture of his leg by his kneecap and has experienced symptoms since that injury. The Veteran reported receiving x-rays during service for his knee injuries, was assigned to light duty, and given crutches and Motrin. Regarding the restless leg syndrome, the Veteran reported, the Veteran reported he began weakness in his legs after a second fall in 1984. The Board observes the Veterans service treatment reflect he experienced knee and leg pain during service, including an injury to his legs in a 1978 car accident. Additionally, the service treatment records reflect numbness in the legs during service. The Veteran has not been afforded a VA examination for his claims for a knee disability and restless leg syndrome. The Board believes that VA examinations are necessary to adjudicate these claims. 38 C.F.R. § 3.159(c)(4). See McClendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). The Veteran contends that he is entitled to service connection for a left and right hip disability. The Veteran noted that he was told by a treatment provider that his hip pain was related to his service-connected back disability. Accordingly, an opinion regarding the etiology of the Veteran’s left and right hip claims should be obtained. Additionally, the record does not contain an obtain regarding direct service connection for the Veteran’s left and right hips claims, and accordingly an opinion should be obtained. During the September 2019 hearing before the Board, the Veteran testified that he has a difficult time hearing anything. Accordingly, it appears his service-connected bilateral hearing loss has worsened since his last VA examination in January 2011. Accordingly, the Veteran should be afforded a new VA examination to determine the current manifestations and severity of his service-connected bilateral hearing loss. 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). The matters are REMANDED for the following action: 1. With the Veteran’s assistance, obtain any relevant outstanding treatment records and associate with the claims file. 2. The Veteran should be scheduled for a VA examination to ascertain whether any current right knee disability is etiologically related to service. Based on a review of the entire record, the examiner should respond to the following: (a.) Identify any current right knee disabilities. (b.) Is it at least as likely as not (a 50 percent or greater probability) that any right knee disability had its onset during active service or is etiologically related to the Veteran’s active duty service? (c.) If the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability was caused by or aggravated (i.e. permanently worsened beyond the normal progression of that disease) by his service-connected disabilities? If the examiner finds that the right knee disability was aggravated by the service-connected disabilities, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disabilities occurred. The supporting rationale for all opinions expressed must be provided. The examiner should consider the Veteran’s lay statements. 3. The Veteran should be scheduled for a VA examination to ascertain whether any current leg disability is etiologically related to service. Based on a review of the entire record, the examiner should respond to the following: (a.) Identify any current leg disabilities. (b.) Is it at least as likely as not (a 50 percent or greater probability) that any leg disability had its onset during active service or is etiologically related to the Veteran’s active duty service? (c.) If the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran’s leg disability was caused by or aggravated (i.e. permanently worsened beyond the normal progression of that disease) by his service-connected disabilities? If the examiner finds that the leg disability was aggravated by the service-connected disabilities, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disabilities occurred. The supporting rationale for all opinions expressed must be provided. The examiner should consider the Veteran’s lay statements. 4. The Veteran should be scheduled for a VA examination to ascertain whether any current right and left hip disability is etiologically related to service. Based on a review of the entire record, the examiner should respond to the following: (a.) Identify any current right and left hip disabilities. (b.) Is it at least as likely as not (a 50 percent or greater probability) that any right and left hip disabilities had an onset during active service or is etiologically related to the Veteran’s active duty service? (c.) If the answer to (b) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran’s right and left hip disabilities was caused by or aggravated (i.e. permanently worsened beyond the normal progression of that disease) by his service-connected disabilities, including his back disability? If the examiner finds that the right and left knee disabilities were aggravated by the service-connected disabilities, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disabilities occurred. The supporting rationale for all opinions expressed must be provided. The examiner should consider the Veteran’s lay statements. 5. The Veteran should be scheduled for a VA examination to determine the current severity of his service-connected bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. Any tests and studies deemed necessary by the examiner should be conducted, to include the Maryland CNC speech discrimination test. All findings should be reported in detail. The examiner must also fully describe the functional effects of the Veteran’s hearing loss. 6. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case, and return the case to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.