Citation Nr: 21070784 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-25 604A DATE: November 26, 2021 ORDER The appeal of entitlement to service connection for stage 3 breast cancer is dismissed. The appeal of entitlement to a compensable rating for scar, right knee status post knee replacement, is dismissed. REMANDED Entitlement to a rating in excess of 10 percent prior to October 19, 2015 and in excess of 30 percent since December 1, 2016 for status post total right knee replacement (previously rated as degenerative joint disease, right knee, and as bursitis, right knee), is remanded. Entitlement to a rating in excess of 10 percent prior to January 25, 2016 and in excess of 30 percent since March 1, 2017 for status post total left knee replacement (previously rated as degenerative joint disease, left knee, and as bursitis, left knee), is remanded. Entitlement to an effective date earlier than May 19, 2018 for the award of a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than May 19, 2018 for the award of Dependents' Educational Assistance (DEA) benefits is remanded. REFERRED ISSUE TIMELINESS OF JULY 9, 2020 VA FORM 9 On July 9, 2020, the Veteran filed a substantive appeal (VA Form 9) outside of the 60-day appellate window for perfecting the issues of entitlement to service connection for a left ankle disability, right ankle disability, low back disability, and neck disability. With the substantive appeal, the Veteran's agent submitted contentions as to why the VA Form 9 should be accepted as timely as to a December 2018 Statement of the Case. The Board notes that the undersigned took testimony on the compensation issues at the Veteran's February 2021 hearing with an understanding among all present that there was a question as to whether the Board could ultimately reach the merits given that the timeliness question remained unaddressed by the agency of original jurisdiction (AOJ). The Veteran's agent reiterated at the hearing the contentions made in the July 2020 Correspondence. To date, no additional action has been taken by the AOJ on this matter, to include any response to the Veteran's request for acceptance of her substantive appeal as timely. Thus, as no action has been taken by the AOJ, and to afford the Veteran all due consideration under the law, the question as to whether the July 2020 VA Form 9 may be accepted as timely is referred to the AOJ for appropriate action. The Veteran and her agent are encouraged to follow up on this referral with the AOJ. FINDINGS OF FACT 1. In February 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated that she wished to withdraw her appeal for entitlement to service connection for stage 3 breast cancer. 2. In February 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated that she wished to withdraw her appeal for entitlement to a compensable rating for scar, right knee status post knee replacement. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to stage 3 breast cancer are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for entitlement to a compensable rating for scar, right knee status post knee replacement, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1989 to December 1989. The Veteran testified before the undersigned at a virtual tele-hearing in February 2021. A transcript of the hearing is associated with the claims file. Withdrawal of Appeals 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, in the presence of her representative at her February 2021 Board hearing, expressed that she wanted to withdraw the appeal for entitlement to service connection for stage 3 breast cancer and for a compensable rating for scar, right knee status post knee replacement. She was informed of, and articulated understanding of the consequences of this action. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for those issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to October 19, 2015 and in excess of 30 percent from December 1, 2016 for status post total right knee replacement. 2. Entitlement to a rating in excess of 10 percent prior to January 25, 2016 and in excess of 30 percent from March 1, 2017 for status post total left knee replacement. The Veteran was last examined for her right and left knee disabilities in June 2018. At her February 2021 hearing, the Veteran testified that both knees had worsened, insofar as she noted increased pain, buckling, painful range of motion, popping, giving out, and swelling. Given the time that has elapsed since her last VA examination, and the testimony provided at the February 2021 hearing, the Board believes a contemporaneous examination is needed before a fully informed decision can be made as to the propriety of the disability rating assigned for the Veteran's service-connected right and left knee disabilities. 3. Entitlement to an effective date earlier than May 19, 2018 for the award of a TDIU. 4. Entitlement to an effective date earlier than May 19, 2018 for the award of DEA benefits. Prior to May 19, 2018, the Veteran does not meet the schedular requirement for an award of TDIU. That stated, the claims for earlier effective dates for the awards of TDIU and DEA benefits are inextricably intertwined with the increased rating claims being remanded herein, and appellate consideration of these matters must therefore be deferred pending resolution of the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board adds that private medical records and Social Security Administration (SSA) records were added to the claims file after the issuance of the most recent supplemental statement of the case in July 2020. As the Board is remanding the claims above for further development, this additional evidence will be considered by the RO in the adjudication of those claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for a knee examination to ascertain the current severity of her service-connected right and left knee disabilities. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should report or estimate functional loss during flare-ups and after repetitive use in terms of the degree of additional loss of range of motion. To the extent possible, the examiner should provide a retrospective opinion regarding the severity of the Veteran's knee conditions for the periods of time prior to the Veteran's knee replacements. 2. Then, readjudicate the issues on appeal, to include entitlement to earlier effective dates for the awards of TDIU and DEA benefits. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.