Citation Nr: 20030109 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-28 473 DATE: April 29, 2020 ORDER The appeal seeking entitlement to service connection for hearing loss, right ear is dimissed. REMANDED Entitlement to a compensable evaluation for left ankle, post fracture dislocation is remanded. FINDING OF FACT In February 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal for entitlement to service connection for hearing loss, right ear is requested. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to service connection for hearing loss, right ear by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to January 1953, from July 1977 to June 1987, and from January 2003 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2020. 1. Entitlement to service connection for hearing loss, right ear 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant stated at the February 2020 Board Hearing that he wishes to withdraw this appeal 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 and it is dismissed. REASONS FOR REMAND 2. Entitlement to a compensable evaluation for left ankle, post fracture dislocation is remanded. At the Board hearing, the Veteran identified outstanding relevant private treatment records. The Board finds that such records should be obtained. Additionally, the record reflects that the Veteran last underwent a VA examination in December 2016. The Board finds that the Veteran should undergo an updated VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private provider identified at the February 2020 Board hearing (see Transcript page 5 for full name). Make two requests for any identified authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain updated VA treatment records dated from March 2019 to the present. 3. Schedule the Veteran for the appropriate VA examination to evaluate his left ankle disability. The Veteran's claims folder must be reviewed by the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including range of motion of the ankles AND the degree at which pain begins to comply with DeLuca. Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH ankles on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the ankles cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.