Citation Nr: 21029118 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-11 820 DATE: May 12, 2021 ORDER Entitlement to service connection for individual unemployability (TDIU) has been withdrawn. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD) has been withdrawn. Entitlement to an effective date of service connection prior to February 8, 2018 for posttraumatic stress disorder, major depressive disorder, recurrent, severe with psychotic symptoms, and cocaine use disorder is withdrawn. REMANDED Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. FINDINGS OF FACT 1. On January 19, 2021, at hearing before the Board and prior to the promulgation of a decision in the appeal, the Veteran and his authorized representative requested to withdraw the issue of entitlement to service connection for individual unemployability. 2. On January 19, 2021, at hearing before the Board and prior to the promulgation of a decision in the appeal, the Veteran and his authorized representative requested to withdraw the issue of entitlement to an increased evaluation for PTSD. 3. On January 19, 2021, at hearing before the Board and prior to the promulgation of a decision in the appeal, the Veteran and his authorized representative requested to withdraw the issue of entitlement to an effective date of service connection prior to February 8, 2018 for posttraumatic stress disorder, major depressive disorder, recurrent, severe with psychotic symptoms, and cocaine use disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for individual unemployability by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the claim for entitlement to service connection for an increased evaluation for PTSD by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the claim for entitlement to an effective date of service connection prior to February 8, 2018 for posttraumatic stress disorder, major depressive disorder, recurrent, severe with psychotic symptoms, and cocaine use disorder by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2010 to December 2010. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for TDIU has been withdrawn. 2. Entitlement to an increased evaluation for PTSD has been withdrawn. 3. Entitlement to an effective date of service connection prior to February 8, 2018 for posttraumatic stress disorder, major depressive disorder, recurrent, severe with psychotic symptoms, and cocaine use disorder is withdrawn. 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. §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, the Veteran and his representative requested to withdraw these issues on the record at the January 2021 hearing. The withdrawal was explicit, unambiguous, and 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). Hence, there remains no allegations of errors of fact or law for appellate consideration for that issue. Accordingly, the Board does not have jurisdiction to review the appeals for entitlement to service connection for individual unemployability, entitlement to an increased evaluation for PTSD, and entitlement to an earlier effective date of service connection for psychological conditions and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for left and right knee disabilities is remanded. A remand is required for additional development and an adequate VA opinion. The Veteran was provided with a VA examination for his right knee in January 2018. The Veteran was diagnosed with right knee osteoarthritis. The examiner determined that the Veteran's right knee condition was less likely than not related to his active duty service as there was no actual documentation of right knee complaints in the service treatment records (STRs). The examiner noted that the in-service record noting a knee injury did not specify which knee was injured. The Board finds this opinion to be inadequate for lack of proper rationale. The examiner relied largely on the lack of documentation in service to support a negative nexus opinion. Furthermore, the examiner dismissed the evidence of an in-service knee injury simply because the laterality of the knee was not noted. Outside of this the examiner failed to provide any medical explanation or support as to why nexus was denied. Thus, the rationale essentially relies on the lack of an in-service diagnosis for providing the etiological opinion. As such, the Board finds the January 2018 opinion inadequate. Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran's lay statements to provide negative opinion). The Veteran was provided with a VA examination to evaluate his left knee in June 2018. The Veteran was diagnosed with left knee strain. The examiner determined that the Veteran's left knee condition was less likely than not related to service as there was a single incident of left knee pain in service. The examiner determined that the lack of documentation of further complaints for the left knee in or out of service indicated a lack of severity or chronicity of the condition. The examiner also noted that the Veteran was not seen again for left knee issues until 2017 leaving a gap of seven years. The examiner stated that documentation of knee issues on a more consistent basis would have better substantiated the claim. The Board notes that this opinion is inadequate as the examiner's rationale rested largely on the lack of continuous documentation of treatment for the knees. The Veteran explained in the January 2021 hearing, however, that he was receiving private physical therapy treatment for his knees immediately following service until he lost his insurance and was unable to continue treatment. The Veteran also explained that he struggled with periods of homelessness following service which accounted for the gaps in treatment following discharge. As these lay statements were not considered in providing the June 2018 nexus opinion, remand is required. Additionally, during the January 2021 Board hearing, the Veteran indicated that he was receiving private physical therapy treatment for his knees following service. VA has a duty to assist claimants to obtain evidence needed to substantiate their claims, which includes making reasonable efforts to obtain pertinent private treatment records. Here, as the Veteran indicated that there are outstanding non-VA treatment records that are relevant to his claim, it is necessary for the RO to obtain such records. Thus, before a decision can be reached on the Veteran's claim for entitlement to service connection for a right and left knee condition, remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include the physical therapy he underwent for his knees following service. Attempt to obtain and associate any identified private treatment records. 2. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment. 3. After any additional records are associated with the claims file, obtain an opinion regarding the etiology of the Veteran's right and left knee condition from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right and left knee disabilities had their onset in, or are otherwise related to, active service. The examiner must specifically address the following: The November 2010 STR documenting the Veteran's in-service knee injury and the Veteran's lay statements from the January 2021 hearing. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.