Citation Nr: 21068751 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-32 427 DATE: November 12, 2021 ORDER Service connection for residuals of a right knee injury is granted. The appeal seeking entitlement to service connection for ankylosis of the left thumb is dismissed. The appeal seeking entitlement to service connection for ankylosis of the right thumb is dismissed. The appeal seeking entitlement to service connection for residuals of a left knee injury is dismissed. FINDINGS OF FACT 1. The Veteran's right knee injury residual are proximately due to his service-connected left ankle disability. 2. On November 5, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of service connection for ankylosis of the left thumb was requested. 3. On November 5, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of service connection for ankylosis of the right thumb was requested. 4. On November 5, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal if service connection for residuals of a left knee injury was requested. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right knee injury as secondary to service-connected left knee injury residuals are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for withdrawal of the appeal of service connection for ankylosis of the left thumb by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal of service connection for ankylosis of the right thumb by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal of service connection for residuals of a left knee injury by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to June 1971. In November 2021, a videoconference hearing was held before the undersigned. Service Connection Service connection for residuals of a right knee injury The Veteran contends his right knee injury residuals are proximately due to or the result of his service-connected left ankle disability. During the hearing before the undersigned, he stated that he injured his right knee initially while jumping off the table. At that time, he tore his anterior-cruciate ligament (ACL) because he needed to take the full force of his jump on his right leg as a result of his left ankle fusion, which prevents any mobility in his left lower extremity. The Veteran further pointed out that over the years, the left ankle disorder has created significant stress on the right lower extremity. A January 2003 private treatment record shows that the Veteran had an intact anterior cruciate ligament graft, horizontal tear of the body of the posterior horn of the medial meniscus, severe degenerative osteoarthritis, and inflammatory changes anterior to the anterior cruciate ligament of the right knee. This shows that the Veteran has current disabilities of the right knee. In September 2015, a VA examiner opined that it was less likely than not that the Veteran's right knee disorder was proximately due to or the result of his service-connected left ankle disorder. The rationale was that the Veteran had trauma that was significant enough to tear the right ACL after his left ankle fusion. The examiner stated that the current complaints were more likely from that injury than secondary to the left ankle. During November 2021 Board hearing, however, the Veteran testified about the circumstances surrounding this injury. He credibly stated that at the time he was sitting on a picnic table and felt a pop in his right knee when he got off the table. He tore his ACL because his left ankle fusion necessitated that he had to overcompensate with his right lower extremity. All of his weight and stress was placed on the right lower extremity. As such, the injury described by the September 2015 VA examiner is ultimately found to be responsible for the Veteran's right knee ACL tear. In addition, in an October 2021 statement, a private physician opined that the Veteran's adjacent knee arthroplasty was due a left ankle arthrodesis that resulted in an altered gait that increased stress on his adjacent foot and knee. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right knee disabilities are proximately due to his service-connected left ankle disorder. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for ankylosis of the left thumb and right thumb and for residuals of an injury of the left knee 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. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisiov. Shinseki, 25 Vet. App. 45, 47 (2011). In the present case, during the November 2021 Board hearing, the Veteran expressed a desire to withdraw the appeal with respect to the appeals of service connection for ankylosis of each of his thumbs and of the residuals of an injury of the left knee. The undersigned VLJ confirmed with the Veteran that he understood that by withdrawing these issues, he would have to file a new claim in order to seek service connection in the future, and if awarded, any effective date would be assigned from the date of the new claim, as VA would take no further action on the current claims. The undersigned VLJ further confirmed with the Veteran's representative that he had spoken with the Veteran prior to the hearing and that it was their desire to withdraw these issues. Thereafter, the Veteran indicated that he still wished to withdraw those issues and no further testimony was taken on them. (Continued on the next page) Accordingly, the Board finds that the withdrawal of the issues of entitlement to service connection for ankylosis of the left thumb and right thumb and for residuals of an injury of the left knee was explicit, unambiguous, and done with a full understanding of the consequences of such action and, therefore, the standards as outlined in Acree and DeLisio were met. Thus, there remains no allegation of error of fact or law for appellate consideration and the Board does not have jurisdiction to review the appeal as to those issues. Likewise, the appeal as to those issues is dismissed without prejudice. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.