Citation Nr: 21026653 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-64 408 DATE: May 3, 2021 ORDER Entitlement to an increased rating for a left knee disability is dismissed. REMANDED Entitlement to service connection a right hip disability is remanded. Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to a TDIU prior to January 25, 2015 is remanded. FINDING OF FACT Before a decision was issued on the matter of entitlement to an increased rating for a left knee disability, the Veteran stated at his September 2020 Board hearing and in a subsequent written correspondence that he would like to withdraw his appeal. CONCLUSION OF LAW The criteria have been met for the withdrawal of the appeal for entitlement to an increased rating for a left knee disability. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1981 to August 1985. In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing has been associated with the claims file. At the outset, the Board notes that the Veteran's claim for service connection for a thoracic spine condition was granted in a February 2020 rating decision. As the Veteran's claim has been granted, there is nothing for the Board to adjudicate in regard to his claim, and the issue will not be included in this appeal. 1. Entitlement to an increased rating for a left knee disability is dismissed The Board may dismiss any appeal which fails to state 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, at the September 2020 Board hearing, the Veteran withdrew the appeal for entitlement to an increased rating for a left knee disability; hence, there remain no statements of errors of fact or law for appellate consideration. See Board Transcript at 12-13. In addition, the Veteran submitted a written statement after his hearing confirming the knowing withdrawal of his appeal for an increased rating for a left knee condition. See September 2020 Statement in Support of Claim. Accordingly, the Board does not have jurisdiction to review this matter and therefore it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection a right hip disability is remanded. The Veteran contends that his right hip disability is secondary to his service-connected knee disabilities. At the Veteran's September 2020 Board hearing, his representative explained that all of the Veteran's physiological issues on appeal, including his right hip disability, were related to an accident the Veteran suffered in his civilian life that was the result of his knee buckling while he was at work, causing him to injure himself. Specifically, the Veteran testified that he has bad knees and suffered a fall in May 2013 or May 2014 while he was working for Rebel Oil as a fuel deliverer. In that job, the Veteran was required to drive the fuel truck, as well as unload the truck at gas stations and for private customers. The Veteran was injured while filling a fuel tank. He described the fuel tank, estimating that it held up to 12,000 gallons, about 12 feet high. In order to fill a fuel tank, it is necessary to get up on the tank, as the filling hose must be on top to put in the fuel. On the day of the Veteran's fall, he was looking into the hole on top of the tank, and when he stood up his leg buckled, causing him to topple and fall. As he was falling he realized he was going to fall onto his head, so he grabbed the side of his truck which bounced him off of a retaining wall, a black wall between the truck and the tank. The Veteran fell onto his arm, and reportedly blacked out from the pain. In a disability evaluation dated October 2008, a medical examiner made notations of the Veteran's fall while working as a fuel truck driver. The examiner wrote that according to the Veteran's medical records, the Veteran was climbing down a fuel tank and fell, reaching out and grabbing for a pole as he did so to prevent his fall. After his fall, the Veteran felt a snap in his bicep area, associated with immediate pain. In a 2014 VA examination, an examiner determined that the Veteran's right hip condition was at least as likely as not proximately due to or the result of the Veteran's right knee causing falls. The examiner noted the Veteran's knee disability history. The examiner also noted that on examination, the Veteran was diagnosed with a right hip disability, degenerative osteoarthritis, and it was likely that the Veteran sustained injury to his hip during falls due to his knees, which accelerated the degenerative process greater than normal progression. In a separate 2014 VA opinion, the same examiner determined that the Veteran's right hip condition was less as likely as not proximately due to or the result of right knee instability. The examiner reasoned that there was no objective evidence to support the right hip condition as being due to the right knee instability. The Veteran's hip issues were instead likely degenerative related, and due to a combination of factors including age, wear and tear, genetics, and lifestyle (obesity). The Board finds that a new VA examination and addendum opinion is warranted in light of the foregoing conflicting medical opinions of record. While there is a positive opinion of record, the same examiner provided a negative nexus opinion. As such, the Board cannot rely on either opinion due to the contradictory nature. The Board notes that there are no other VA opinions on file to defer to regarding this issue. Therefore, a new VA examination is warranted regarding the Veteran's right hip condition. 2. Entitlement to service connection for a left arm disability is remanded. 3. Entitlement to service connection for a left shoulder disability is remanded. 4. Entitlement to service connection for a left wrist disability is remanded. The Veteran contends that his left arm, shoulder, and wrist disabilities are secondary to his service-connected knee disabilities. As noted above, at the Veteran's September 2020 Board hearing, his representative explained that all of the Veteran's physiological issues on appeal, including his left arm, shoulder, and wrist disabilities, were related to an accident the Veteran suffered in his civilian life that were the result of his knee buckling while he was at work, causing him to injure himself. Specifically, the Veteran testified that he has bad knees and suffered a fall in May 2013 or May 2014 while he was working for Rebel Oil as a fuel deliverer. In that job, the Veteran was required to drive the fuel truck, as well as unload the truck at gas stations and for private customers. The Veteran was injured while filling a fuel tank. He described the fuel tank, estimating that it held up to 12,000 gallons, about 12 feet high. In order to fill a fuel tank, it is necessary to get up on the tank, as the filling hose must be on top to put in the fuel. On the day of the Veteran's fall, he was looking into the hole on top of the tank, and when he stood up his leg buckled, causing him to topple and fall. As he was falling he realized he was going to fall onto his head, so he grabbed the side of his truck which bounced him off of a retaining wall, a black wall between the truck and the tank. The Veteran fall onto his arm, and reportedly blacked out from the pain. In a disability evaluation dated October 2008, a medical examiner made notations of the Veteran's fall while working as a fuel truck driver. The examiner wrote that according to the Veteran's medical records, the Veteran was climbing down a fuel tank and fell, reaching out and grabbing for a pole as he did so to prevent his fall. After his fall, the Veteran felt a snap in his bicep area, associated with immediate pain. The examiner noted that the Veteran was seen on September 14, 2006 at Mountain View; on examination, his left arm had severe tenderness and moderate deformity with bicep tendon rapture, no deformity, consistent with numerous fractures or shoulder dislocation. The Veteran's left elbow had severe tenderness and moderate deformity. He was unable to flex his left elbow without severe pain. The Veteran was seen orthopedically on September 19, 2006. The Veteran presented with a history of left knee anterior cruciate ligament, and had a bucket-handle tear in his knee, which was preexisting. On examination, the Veteran's neck had a full range of motion, and lower extremities were intact. He was in a severe amount of pain over his bicipital tuberosity, and he had pain with resisted bicep motion. An MRI was obtained of the left distal forearm and elbow region, which showed complete disruption of the distal biceps, tendon, and lacertus fibrosus. The Veteran was taken to surgery on September 29, 2006. Post-operative diagnosis was left open distal bicep complete tear. The Veteran was seen by a Dr. P. on February 27, 2007. At that time, the Veteran's strength was poor, and his wrist was very stiff. He lacked 5 to 10 degrees of flexion about the shoulder; strength was hard to test, but was noted as probably ok. His wrist strength lacked 5 percent dorsiflexion and plantar flexion. Impression was joint degenerative disease with strain of the shoulder, wrist strain, improving, and elbow massive biceps tendon rupture with massive retraction, operated on. In a 2014 VA examination, an examiner found that the Veteran's left shoulder condition was at least as likely as not proximately due to or the result of the Veteran's right knee causing falls. The examiner detailed the Veteran's knee disabilities, and noted the Veteran's reported fall during work due to his knee. The examiner opined that it was likely that the Veteran experienced frequent falls due to his knee condition, giving rise to his current left shoulder condition. In addition to finding that the Veteran's left shoulder was at least as likely as not due to the Veteran's service-connected knee, the examiner also found that the Veteran's left arm and left wrist conditions were also at least as likely as not proximately due to or the result of the Veteran's right knee causing falls. In a separate 2014 VA opinion, the same examiner found that the Veteran's left wrist condition was less likely than not proximately due to or the result of the Veteran's right knee instability. The examiner reasoned that there was no proximate relationship between the wrist and knee instability. That examiner similarly found that it was less likely than not that the Veteran's left arm or shoulder conditions were proximately due to or the result of the Veteran's right knee instability. The examiner simply provided that there was no proximate relationship between the left arm or shoulder and right knee instability. The Board finds that new VA examinations and addendum opinions are warranted in light of the foregoing conflicting medical opinions of record. While there are positive opinions of record, the same examiner provided negative nexus opinions. As such, the Board cannot rely on the positive or negative opinions due to the contradictory nature. The Board notes that there are no other VA opinions on file to defer to regarding these issues. Therefore, remand is warranted to obtain new VA examinations regarding the Veteran's left arm, shoulder, and wrist conditions. 5. Entitlement to a TDIU prior to January 25, 2015 is remanded. At the Veteran's September 2020 Board hearing, he testified that he had not worked since 2013. As of 2013, he was granted Social Security benefits. As the Board is remanding the Veteran's claims for service connection, his claim for entitlement to a TDIU must also be remanded because it is inextricably intertwined. Thus, the Board defers consideration of the Veteran's claim for a TDIU until further development is complete. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations (or telehealth interview, records review, etc., if an in-person examination is not feasible due to restrictions of the COVID-19 pandemic) for his right hip, left arm, left shoulder, and left wrist disabilities. Following a review of the entire record, the Veteran's competent lay statements, as well as the Veteran's reports regarding the onset and progression of his current symptomatology, the VA examiner(s) must opine to the following: (a.) Whether the Veteran's right hip disability is at least as likely as not 1) proximately due to his service-connected right knee disability which previously caused the Veteran to fall and sustain injuries, or was 2) aggravated beyond its natural progression by his service-connected right knee disability and related fall. (b.) Whether the Veteran's left arm disability is at least as likely as not 1) proximately due to his service-connected right knee disability which previously caused the Veteran to fall and sustain injuries, or was 2) aggravated beyond its natural progression by his service-connected right knee disability and related fall. (c.) Whether the Veteran's left shoulder disability is at least as likely as not 1) proximately due to his service-connected right knee disability which previously caused the Veteran to fall and sustain injuries, or was 2) aggravated beyond its natural progression by his service-connected right knee disability and related fall. (d.) Whether the Veteran's left wrist disability is at least as likely as not 1) proximately due to his service-connected right knee disability which previously caused the Veteran to fall and sustain injuries, or was 2) aggravated beyond its natural progression by his service-connected right knee disability and related fall. The examiner(s) must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. A clearly stated rationale for any opinion offered should be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.