Citation Nr: 20047516 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 17-22 407 DATE: July 16, 2020 ORDER Entitlement to an effective date earlier than June 21, 2012, for the grant of service connection for right knee osteoarthritis, having been withdrawn by the Veteran, is dismissed. Entitlement to an effective date earlier than June 21, 2012, for the grant of service connection for left knee osteoarthritis, having been withdrawn by the Veteran, is dismissed. REMANDED Entitlement to a higher initial disability rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a higher initial disability rating in excess of 10 percent for left knee osteoarthritis is remanded. FINDINGS OF FACT 1. On June 17, 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed by the Veteran on the record at a virtual Board hearing that the issue of an effective date earlier than June 21, 2012 for the grant of service connection for right knee osteoarthritis was no longer being pursued on appeal. 2. On June 17, 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed by the Veteran on the record at a virtual Board hearing that the issue of an effective date earlier than June 21, 2012, for the grant of service connection for left knee osteoarthritis was no longer being pursued on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an effective date earlier than June 21, 2012, for the grant of service connection for right knee osteoarthritis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the issue of an effective date earlier than June 21, 2012, for the grant of service connection for left knee osteoarthritis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1978 to June 1981. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified at a June 2020 virtual Board hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. 1. Earlier Effective Date for Service Connection for Right Knee Osteoarthritis 2. Earlier Effective Date for Service Connection for Left Knee Osteoarthritis Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. On June 17, 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed by the Veteran on the record at a virtual Board hearing that both the issue of an effective date earlier than June 21, 2012, for the grant of service connection for right knee osteoarthritis, and the issue of an effective date earlier than June 21, 2012, for the grant of service connection for left knee osteoarthritis, were no longer being pursued on appeal. The Veteran’s representative also noted in a June 2020 written brief that the issues were being withdrawn. As the Veteran has withdrawn the appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration. See 38 U.S.C. § 7104. Accordingly, the Board does not have jurisdiction to review the issues, and the issues of an effective date earlier than June 21, 2012, for the grant of service connection for right and left knee osteoarthritis will be dismissed. REASONS FOR REMAND 1. Initial Disability Rating for Right Knee Osteoarthritis 2. Initial Disability Rating for Left Knee Osteoarthritis A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran last received a VA knee examination in December 2015. At the June 2020 virtual Board hearing, the Veteran testified that the right and left knee disability symptoms have worsened since the December 2015 VA examination. Further, at both the June 2020 virtual hearing and in a June 2020 brief, the Veteran’s representative asked that the instant matter be remanded to schedule a new VA knee examination. Considering the evidence of record, the Board finds remand for a new VA knee examination to be warranted. In a May 2020 letter, the Veteran’s representative asked that the curriculum vitae (CV) and other relevant personnel records be provided concerning the VA examiner who performed the December 2015 VA knee examination. On remand such documentation should be provided to the Veteran’s representative to the extent possible. Further, in anticipation of a similar request in the future, the representative should also provide the same information as to the examiner who will be conducting the upcoming VA knee examination. The aforementioned matters are REMANDED for the following action: 1. To the extent possible, provide the Veteran’s representative with a copy of the CV and/or other available personnel records for the VA examiner who conducted the December 2015 VA knee examination; such information should also be provided for the VA examiner performing the new VA knee examination, discussed below. 2. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the knees. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the knees, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s knees, not already of record, for the period from December 2015. 4. Schedule the appropriate VA examination to assist in determining the current level of severity of the service connected right and left knee osteoarthritis. The VA examiner should report the extent of all right and left knee disability symptoms in accordance with VA rating criteria. 5. Then, readjudicate the issues of higher initial disability ratings in excess of 10 percent for right and left knee osteoarthritis. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.