Citation Nr: 21072755 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-40 976 DATE: December 6, 2021 ORDER The appeal as to the issue of entitlement to an effective date prior to April 17, 2015 for the 50 percent rating assigned for bilateral pes planus with plantar fasciitis has been withdrawn. REMANDED The issue of entitlement to a rating in excess of 10 percent for costochondritis with muscle group XXI strain is remanded. The issue of entitlement to an effective date prior to April 17, 2015 for the increased rating of 10 percent for costochondritis with muscle group XXI strain is remanded. The issue of entitlement to a rating in excess of 10 percent for chondromalacia of the left knee is remanded. The issue of entitlement to a rating in excess of 10 percent for chondromalacia of the right knee is remanded. The issue of the propriety of the reduction in the disability rating for instability of the left knee from 30 percent to 10 percent, effective June 12, 2015, is remanded. The issue of the propriety of the reduction in the disability rating for instability of the right knee from 30 percent to 10 percent, effective June 12, 2015, is remanded. FINDING OF FACT In the February 2021 hearing before the Board, the Veteran requested that her appeal as to the issue of entitlement to an effective date prior to April 17, 2015 for the 50 percent rating assigned for bilateral pes planus with plantar fasciitis be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the issue of entitlement to an effective date prior to April 17, 2015 for the 50 percent rating assigned for bilateral pes planus with plantar fasciitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from July 2001 to February 2006. These matters come before the Board of Veterans' Appeals (Board) from an August 2015 rating decision. The Veteran testified before the Board at a hearing in February 2021. A transcript of the hearing has been associated with the claims file. During the February 2021 hearing before the Board, the Veteran withdrew her appeal as to the issue of entitlement to an effective date prior to April 17, 2015 for the 50 percent rating assigned for bilateral pes planus with plantar fasciitis. A Veteran may withdraw her appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 19.55. When a Veteran does so, the withdrawal effectively creates a situation in which an allegation of error, fact, or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55. In view of the Veteran's expressed desire, the Board concludes that her intent was to withdraw the appeal as to the issue of entitlement to an effective date prior to April 17, 2015 for the 50 percent rating assigned for bilateral pes planus with plantar fasciitis, and further action with regard to this issue is not appropriate. The Board no longer has jurisdiction over this issue and, as such, must dismiss the appeal as to the issue of entitlement to an effective date prior to April 17, 2015 for the 50 percent rating assigned for bilateral pes planus with plantar fasciitis. REASONS FOR REMAND Costochondritis The Board finds that further development is necessary regarding the issue of a rating in excess of 10 percent for costochondritis with muscle group XXI strain and the issue of entitlement to an effective date prior to April 17, 2015 for the increased rating of 10 percent for costochondritis with muscle group XXI strain. During the February 2021 Board hearing, the Veteran provided testimony regarding her costochondritis. She stated that her costochondritis has progressively worsened, and she has difficulty reaching above her head and lifting objects above her head. Further, she stated that her costochondritis symptoms also include worsened stabbing pain, chest pressure, and difficulty breathing. When evidence indicates that a service-connected disability is worse than it was at the time of a Veteran's most recent VA examination, as is the case here, it is within VA's duty to assist that she be afforded a new examination in order to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). Therefore, the Board finds that a remand for a new VA examination is warranted. In addition, the Board notes the agency of original jurisdiction modified the diagnostic code under which the disability has been evaluated from 5297 to 5321. The examiner should be asked to verify that the Veteran's disability is associated with a particular muscle group; or whether her symptoms have some other source. Bilateral Knee Disabilities The Board finds that further development is necessary regarding the Veteran's claims of increased ratings for bilateral knee disabilities. During the February 2021 Board hearing, the Veteran provided testimony regarding her bilateral knee disabilities. She stated that her bilateral knee disabilities have progressively worsened. She stated that her bilateral knee symptoms include buckling, constant discomfort, stiffness, flare-ups with certain weather conditions, inability to climb stairs, inability to stand or sit for prolonged periods, and inability to participate in certain exercises and sports. Further, she stated that she has recently been diagnosed as having no cartilage in her knees, an anterior cruciate ligament (ACL) tear, and a knee cyst. As the evidence indicates that the Veteran's service-connected bilateral knee disabilities have worsened since the time of the most recent VA examination, a new VA examination is warranted to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). Therefore, a remand for a new VA examination is necessary at this time. Regarding the issues of reductions in the disability ratings for instability of the bilateral knees from 30 percent for to 10 percent for each knee, the Board is unable to adjudicate these issues until the above development is completed. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, a remand is necessary at this time. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination regarding costochondritis. The claims folder should be made available to and be reviewed by the examiner. The examiner should address the current severity of the Veteran's costochondritis; and identify the source of the Veteran's symptoms, and specifically whether it arises from a particular muscle group, or some other location/cause. The examiner should also consider all lay statements submitted by the Veteran regarding her disability. 2. Schedule the Veteran for an examination to determine the nature and severity of her bilateral knee disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Test each joint for range of motion and consider pain on both passive and active motion, in both weight-bearing and non-weight-bearing positions, including for the corresponding joint if appropriate. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b. The examiner should determine whether each knee disability is manifested by weakened movement, excess fatigability, incoordination, and/or pain after repetitive use over time and/or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner should provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner should also consider all lay statements submitted by the Veteran regarding her disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.