Citation Nr: 21008277 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 20-06 416 DATE: February 12, 2021 ORDER The Veteran’s appeal with respect to entitlement to service connection for a dental disability is dismissed. The Veteran’s appeal with respect to entitlement to service connection for diabetes mellitus is dismissed. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, or at the housebound rate, is remanded. FINDING OF FACT On the record at an October 2020 hearing, prior to the promulgation of a Board decision on the matter, the Veteran requested, through his representative, that the appeals with respect to entitlement to service connection for a dental disability and diabetes mellitus be withdrawn. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a dental disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1945 to March 1949. His decorations include the World War II Victory Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran and two of his sisters testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for a dental disability 2. Entitlement to service connection for diabetes mellitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in an appeal. 38 C.F.R. § 19.55. Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In this case, on the record at his October 2020 hearing, prior to the promulgation of a Board decision on the matter, the Veteran requested, through his representative, that his appeals with respect to entitlement to service connection for a dental disability and diabetes mellitus be withdrawn. That request has since been reduced to writing in a transcript, received by the Board, which includes the Veteran’s name and his VA file number. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal of these issues, there remain no allegations of error of fact or law for appellate consideration with respect to those issues. Accordingly, the Board does not have jurisdiction to review the issues and the appeal of these issues must be dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his left knee disability was incurred in or caused by service. Specifically, he testified at the October 2020 hearing that he injured his knees when he fell down an entire flight of steel steps while aboard a ship during service; that he was treated by the chief pharmacist’s mate, who iced and wrapped his knees and elbows; and that he has suffered from knee pain since that time. In support of his claim, the Veteran has submitted lay statements from various family members to the effect that he has suffered from knee pain and has had problems walking for many decades. As an initial matter, the Board notes that the claims file demonstrates that the Veteran has a current diagnosis of advanced degenerative joint disease (DJD) of both knees. VA treatment records also indicate that he has been treated for knee problems for many years. The Board notes that the Veteran has not been afforded a VA examination and/or medical opinion in relation to his claim. Given the evidence, including the established diagnosis of advanced DJD of the knees, the lay statements of record suggesting in-service onset, and the low threshold for obtaining a medical examination and/or opinion under applicable law, the Board finds that a VA examination and/or opinion is warranted. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Board also notes that it is unclear whether the claims file contains a complete copy of the Veteran’s VA treatment records. At the October 2020 hearing, he testified that he first sought treatment from VA care providers in the early 1990s. He also indicated that he met with A. H.-P., M.D., a VA provider, and that he received knee injections from her for about three to four years. After review of the claims file, the Board notes that the earliest dated VA treatment records at present are from May 2001; the earliest record showing treatment from Dr. H.-P. is from December 2018; and while the record shows that the Veteran has received knee injections on many occasions, the first was in March 2016, and Dr. H.-P. does not appear to have been present or involved on that occasion. On remand, efforts should be made to ensure that a complete copy of the Veteran’s VA treatment records are associated with the claims file. Any updated records of VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to a TDIU is remanded. 3. Entitlement to SMC based on the need for regular aid and attendance, or at the housebound rate, is remanded. The Veteran contends that his left knee disability prevents him from obtaining and/or sustaining substantial gainful employment. Specifically, he testified at the October 2020 hearing that he has been unemployable since 1988 because his left knee disability made it impossible for him to work. He also contends that he is entitled to SMC because of his left knee disability. The Board notes that the Veteran is not currently service connected for any disabilities. His claims of entitlement to a TDIU and SMC are directly related to his claim for service connection for a left knee disability. That is to say, the claims are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another issue). As such, the Board will remand the claims of entitlement to a TDIU and SMC as well. These matters are REMANDED for the following action: 1. Take action to ensure that all records of the Veteran’s VA treatment are associated with the claims file, to include any records dated from the 1990s, including, but not limited to, any and all non-electronic (i.e., typed or hand-written) clinical records, progress notes, and/or reports of hospitalization, whether or not they have been archived, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to an appropriate VA clinician for purposes of obtaining a medical opinion as to the etiology of the Veteran’s left knee disability. After reviewing the record, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s left knee disability had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the Veteran’s contention that he injured his knees when he fell down a flight of steel steps during service and that he has had pain since. The examiner should also consider the lay statements of record indicating that he has had problems with his knees for many decades. The need for an in-person examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a   supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.