Citation Nr: 21064630 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-08 636 DATE: October 21, 2021 ORDER Entitlement to a compensable rating for chronic nose bleeds has been withdrawn. New and material evidence, having been received, the claim of entitlement to service connection for a low back disability is reopened. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to right knee disability, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to right knee disability, is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The Veteran served on active duty from August 1982 to August 2002. These matters become before the Board of Veterans Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran's claim of entitlement to service connection for low back disability was previous denied in January 2010; this decision became final. The Board finds that the evidence submitted or obtained by VA since the January 2010 rating decision, including the Veteran's October 2021 testimony, is both new and material and sufficient evidence to reopen the claim. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement). Accordingly, the claim is reopened. FINDINGS OF FACT 1. On October 19, 2021, prior to the promulgation of a decision in the appeal, the Veteran testified at a hearing that he wished to withdraw the appeal as to the claim of entitlement to a compensable rating for chronic nose bleeds. 2. The Veteran's low back disability is related to his active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of claim of entitlement to service connection for chronic nose bleeds by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Nose Bleeds During an October 19, 2021 Board hearing, the Veteran requested that his appeal with respect to the issue of entitlement to a compensable rating for chronic nose bleeds be withdrawn. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies).] 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 Veteran or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issue of entitlement to a compensable rating for chronic nose bleeds and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran's oral request at the hearing was explicit, unambiguous, and done with the full understanding of the consequences. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. Low Back In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The evidence of record includes a current diagnosis of a low back disability. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Pursuant to his original claim of entitlement, the Veteran was provided a VA examination in December 2009. The examiner rendered a negative etiological opinion with respect to direct and secondary service connection. However, the rationale is conclusory and, as such, the probative value is diminished. Pursuant to his claim to reopen, the Veteran submitted two Disability Benefits Questionnaires, one dated in January 2018 and the other in May 2019. Both examiners indicated that they had reviewed the Veteran's service treatment records, reviewed the Veteran's credible report of an in-service back injury and complaints of lay observable symptoms, and rendered positive etiological opinion. The evidence of record is at least in equipoise as to whether the Veteran's current low back disability is etiologically related to his active duty. Accordingly, reasonable doubt must be resolved in the Veteran's favor and entitlement to service connection for low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). REASONS FOR REMAND Left Knee and Left Ankle The Board finds that a remand is warranted to obtain an opinion as to whether these disabilities were caused or aggravated by the Veteran's service-connected right knee disability. TDIU The Board finds that the issue of entitlement to TDIU has been reasonably raised by the record and, thus, it is within the Board's jurisdiction to consider it herein. However, this issue is inextricably intertwined with the claims being remanded herein and, thus, it must be remanded for contemporaneous consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran a VA examination with respect to his left ankle and left knee. All pertinent evidence of record should be made available to and reviewed by the examiner. All studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left ankle and/or left knee: (a) is/are causally or etiologically related to the Veteran's active duty; and/or (b) was/were caused or aggravated by a service-connected right knee disability. All rendered opinions should be supported by a thorough rationale. 2. Re-adjudicate the claims remanded herein, including entitlement to TDIU. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and his representative. After they have had a reasonable opportunity to respond, return to the Board for further appellate review. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.