Citation Nr: 21076567 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-54 305 DATE: December 27, 2021 ORDER Entitlement to an earlier effective date for the grant of service connection for major depression is dismissed. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to an increased rating higher than 30 percent for major depression is remanded. FINDING OF FACT 1. In August 2021, prior to the promulgation of a decision in the appeal, the Veteran testified at a Board of Veterans' Appeals (Board) hearing that she wanted to withdraw her claim for entitlement to an earlier effective date for the grant of service connection for major depression. CONCLUSION OF LAW The criteria for withdrawal of entitlement to an earlier effective date for the grant of service connection for major depression are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from November 1985 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing in August 2021. The issues of service connection for a bilateral knee disability and right hip disability have been framed as a claim to reopen based on new and material evidence. The record shows that the RO denied service connection for a bilateral knee disability and right hip disability in August 1991. The Veteran did not appeal this decision. Thus, normally the claim would have become final in August 1992 (i.e., one year after the August 1991 rating decision). An exception to the finality rule is that if new and material evidence is received within one year of the August 1991 rating decision, then the claim remains pending. The record shows VA treatment records dated from September 1991 to April 1992 document right hip and knee pain. This is consistent with the Veteran's testimony at the August 2021 Board hearing that she sought treatment at the VA hospital right after service for her hip and knee disabilities and was given Motrin. See August 2021 Board hearing transcript, pp. 21-22. The VA treatment records document knee pain without making it clear which knee the Veteran was complaining about. Thus, the Board will resolve all doubt in the Veteran's favor that both knees were considered in the treatment records. These VA treatment records are relevant to the claim, as they show ongoing painful symptoms in the right hip and knees. The Federal Circuit has held that if VA receives new evidence within the appeal period of a RO decision, it must be considered according to 38 C.F.R. § 3.156 (b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); see also Turner v. Shulkin, 29 Vet. App. 207 (2018) (VA treatment records generated within the one-year appeal period following a rating decision may satisfy the requirements of 38 C.F.R. § 3.156 (b) when VA adjudicators at VBA have knowledge of the existence of those VA treatment records within the one-year appeal period). VA treatment records are in VA's constructive possession. VA is considered aware of such evidence in its possession when VA is on notice as to its possible existence and relevance and the records could reasonably be expected to be part of the record. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Constructive receipt of VA treatment records in the context of 38 C.F.R. § 3.156 (b) requires knowledge by VA adjudicators of the existence of those records within the one-year appeal period. Turner v. Shulkin, 29 Vet. App. 207. Here, the Veteran's VA treatment records dated from September 1991 to April 1993 were not received until August 2016. However, the Veteran submitted a statement in April 1992 that she had received VA treatment in April 1992. Moreover, a May 1992 VA-Form 10-7132 includes hand-written notes documenting the Veteran's orthopedic treatment in January 1992 and March 1992. Thus, the RO had knowledge of the existence of those records within one year of the August 1991 rating decision. Additionally, the records are new and material with respect to the claim for service connection for right hip and bilateral knee disabilities, so the exception to finality contained in 38 C.F.R. § 3.156 (b) is applicable. For this reason, the issues have been reframed as entitlement to service connection for bilateral knee and right hip disabilities on the merits without consideration of the threshold issue of whether new and material evidence was received. 1. Entitlement to an earlier effective date for the grant of service connection for major depression 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. 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). In the present case, the Veteran testified at the virtual Board hearing that she wanted to withdraw her claim for entitlement to an earlier effective date for the grant of service connection for major depression from appellate consideration. See August 2021 virtual Board hearing transcript, p. 2. The Veteran's oral withdrawal at the hearing was explicit, unambiguous, and done with full understanding of the consequences of such action. As the Veteran has withdrawn the claim for entitlement to an earlier effective date for the grant of service connection for major depression, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hip and knee disabilities because the examination provided pertaining to the knees did not address that she had documented complaints of knee pain since September 1991 during VA treatment visits (only a few months after her April 1991 seapration from service), and has presented competent testimony as to experiencing soreness in her hips and knees after falling from her bunk in service, as well as ongoing recurrent knee pain since her injuries in service. With respect to the bilateral hip disabilities, no VA examiner has found whether she has any present bilateral hip disability related to injuries in service. 5. Entitlement to an increased rating higher than 30 percent for major depression is remanded. The Veteran contends that she is entitled to an increased rating for her major depression. She testified at the Board hearing that she has had suicidal ideation and depression but did not feel comfortable telling a stranger during her examinations about her suicidal thoughts. See August 2021 Board hearing transcript, pp. 7, 13. She also noted that while she has experienced depression, she has not sought treatment because she has had trouble leaving the house to go to appointments. Id. at 11. She noted on a November 2016 statement that she sought treatment at a private facility while in service for suicidal ideation, which is one of the criteria for a 70 percent rating under Diagnostic Code 9434. Her VA mental health examination in November 2016 also showed that she had impaired impulse control, which is another one of the criteria for a 70 percent rating under Diagnostic Code 9434. Her testimony as to not being able to leave the house or do self-care also resembles one of the criteria for a 100 percent rating in that she has intermittent inability to perform activities of daily living, including self-care. The Veteran has not been examined in the context of her increased rating for major depression since November 2016. In April 2021, the Veteran filed a separate claim for service connection for posttraumatic stress disorder (PTSD) based on sexual assault. She underwent an August 2021 VA PTSD examination. The RO has not reviewed the VA PTSD examination report in the context to her increased rating claim for major depression and the Veteran has not waived RO consideration of this evidence. Normally, in this situation, since it is VA-generated medical evidence, a remand for RO consideration would be warranted. See 38 C.F.R. § 20.1305(c). Thus, the RO must issue a Supplemental Statement of the Case with consideration of the August 2021 VA examination report, and any additional medical evidence added to the record. If the evidence in the August 2021 VA examination report is not sufficient to rate her increased rating claim for major depression, then additional examination should be provided. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for additional treatment for depression from her church and her private doctor in Minnesota, as well as her records from Allina Coon Rapids for her knees. Make two requests for the authorized records from these places unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for her bilateral hip and knee disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the any arthritis in the knees (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Is it at least as likely as not that the any arthritis in the hips (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Consider the Veteran's injuries to the hip and knee in service (May 1986 injury to right leg from fall from bunk; January 1987 injury to left knee, noticeable limp; February 1987 pain to lateral left knee; March 1987 pain to left knee possible tendonitis; June 1988 history of left knee tendonitis; and March 1991 complaint of pain to lateral right hip); the VA treatment records documenting hip and knee pain since right after service in September 1991; and her competent testimony as to experiencing soreness in her knees and hips after the fall from the top bunk in service, as well as recurrent hip and knee pain since her injuries in service. In providing the requested opinion, consider the Veteran's description of her in-service injuries and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After reviewing the August 2021 VA PTSD examination, if the information is not sufficient to rate the claim for an increased rating for major depression, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected major depression. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her service-connected psychiatric disorder alone. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.