Citation Nr: 21012641 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 08-30 666 DATE: March 4, 2021 ORDER Entitlement to service connection for a right lower extremity neurological disorder to include as secondary to service-connected right knee disability is dismissed. FINDING OF FACT 1. In a May 2007 rating decision, the RO denied the Veteran’s claim for an increased rating for his service-connected status post tear medial collateral ligament from tibial insertion with chondromalacia right patella. 2. During a June 2010 VA examination, the Veteran raised the issue of a separate compensable neurological condition of his right lower extremity associated with his right knee disability. 3. In various RO decisions and Board decisions throughout the appeal, the Veteran’s claim for a separate rating or for service connection for a right lower extremity neurological disorder have been denied. 4. In a February 2021 rating decision, the RO granted service connection for a right lower extremity neurological disorder, specifically radiculopathy of the right lower extremity (sciatic). CONCLUSION OF LAW The criteria for dismissal of the claim for service connection for a right lower extremity neurological disorder to include as secondary to service-connected right knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1965 to October 1968. The Board notes a brief review of the case’s procedural history would be helpful. In an August 2014 decision addressing an increased rating for the Veteran’s service-connected right knee disability, the Board identified and remanded for development the issue of a separate rating for right lower extremity neurological disorder secondary to the service-connected right knee disability. In October 2014 VA provided an examination to determine the etiology of any right lower extremity neurological disorder. The examiner opined that the Veteran’s right lower extremity neurological disorder was caused by a back condition, not his service-connected right knee disability. The opinion provided did not address the issue of whether or not the Veteran’s service-connected right knee disability aggravated his right lower extremity neurological disorder beyond its natural progression. In April 2015, relying on the October 2014 VA examiner’s opinion, the Board denied service connection for a right lower extremity neurological disorder. In October 2015 a Joint Motion for Remand vacated the April 2015 Board decision because it relied on the inadequate October 2014 VA examiner’s opinion. In January 2016 the Board remanded the issue to obtain an addendum opinion addressing the issue of aggravation. A May 2016 addendum opinion from the original examiner stated that the Veteran’s right knee disability less likely than not worsened or aggravated beyond normal progression his right lower extremity sciatica. The rationale provided was that the right lower extremity sciatica was caused by his back condition, sciatica is not due to and should not be worsened by a knee condition, and the Veteran had no past knee surgeries that could have contributed to any nerve damage. In October 2016, relying on the combined VA opinions of October 2014 and May 2016, the Board again denied service connection for a right lower extremity neurological disorder. In February 2018 the Court of Appeals for Veterans Claims (Court) found that the May 2016 VA examiner’s opinion that appellant’s right lower extremity sciatica “should not be worsened by a knee condition” was a mere restatement of her conclusion without any support whatsoever. In December 2018 the Board remanded the issue to obtain an addendum opinion addressing the issue of aggravation and providing more than a conclusory rationale to support this opinion. However, the Board found that an October 2019 addendum opinion merely referred the reader to “prior rationale given on 5/02/2016” and then restated the opinion that “[a]knee condition would not cause a radiculopathy/sciatica” without citing any relevant medical literature or providing any further rationale. Therefore, in July 2020 the Board again remanded the issue as to service connection for a right lower extremity neurological disorder. While the issue was on remand and pending before the RO, additional VA examinations were conducted, and in a February 2021 rating decision the RO granted service connection for a low back disability as well as for right lower extremity neurological disorder, specifically radiculopathy (sciatica). Entitlement to service connection for a right lower extremity neurological disorder to include as secondary to service-connected right knee disability is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204 (b)(3). The United States Court of Appeals for Veterans Claims (Court) recently held that a verbal withdrawal of an issue at a Board hearing must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal decision must include findings as to all three elements. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). As previously noted, the RO in their February 2021 rating decision granted service connection for a right lower extremity neurological disorder, specifically radiculopathy of the right lower extremity (sciatica). As the Veteran has not expressed a disagreement with the rating assigned or the effective date, nor has he or his representative or the record indicated that there are any other possible neurological disorders of the right lower extremity, there remains no further allegations or questions of factual or legal error remaining for appellate consideration and the Board has no further jurisdiction in the matter. Consequently, it is dismissed. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.