Citation Nr: 21031371 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-11 910 DATE: May 21, 2021 ORDER Entitlement to service connection for a right knee disability has been withdrawn. Entitlement to a disability rating in excess of 10 percent for a left knee disability has been withdrawn. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT At his September 2019 Board Hearing, prior to the promulgation of a decision in this appeal, the Veteran indicated he wished to withdraw his appeal regarding the claims of entitlement to a disability rating in excess of 10 percent for a left knee disability and entitlement to service connection for a right knee disability. There are no questions of fact or law remaining for the Board to consider. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for a right knee disability and a disability rating in excess of 10 percent for a left knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1959 to January 1979. The Veteran died in December 2019. The Appellant is the Veteran's spouse. In September 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. In a December 2019 decision, the Board denied the claims for entitlement to service connection for a left ankle disability and found the Veteran had withdrawn the issues of entitlement to service connection for a right knee disability and an increased disability rating for a left knee disability. The Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court returned the case to the Board for action consistent with a Joint Motion for Partial Remand (JMPR). In the JMPR, the Court vacated and remanded part of the December 2019 Board decision as to the issues of entitlement to service connection for a left ankle disability and withdraw of the issues of entitlement to service connection for a right knee disability and an increased disability rating for a left knee disability. The Court returned these matters to the Board for actions consistent with the JMPR. 1. Entitlement to service connection for a right knee disability 2. Entitlement to a disability rating in excess of 10 percent for a left knee disability In the January 2021 JMPR, the Court vacated the Board's decision as to the above issues as the Board did not provide adequate reasons and bases for its finding that the Veteran withdrew these issues. 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. In the present case, the appellant, through his authorized representative, has withdrawn the issues of entitlement to an increased rating for a left knee disability and service connection for a right knee disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. 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). The Veteran through his representative requested to withdraw the claims seeking service connection for a right knee disability and an increased rating for a left knee disability orally on the record at the September 2019 Board Hearing. The testimony makes it clear that the request to withdraw these claims was explicit and unambiguous, with a full understanding of the consequences. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 3. Entitlement to service connection for a left ankle disability is remanded. The JMPR vacated and remanded the Board's December 2019 decision because the January 2017 VA examination it relied upon when adjudicating this claim was not adequate. The Court found that the examiner did not provide an adequate nexus opinion as to whether the Veteran's in-service left ankle sprain caused or aggravated his current left ankle osteoarthritis. Therefore, the JMPR compels the Board to remand the claim to obtain new etiology opinion. See 38 U.S.C. § 5103A (d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). The matters are REMANDED for the following action: 1. In order to comply with the JMPR, obtain a new medical opinion as to the etiology of the Veteran's left ankle disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) the examiner is asked to provide the following: a.) As to the diagnosed left ankle osteoarthritis, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran's service or is otherwise related to any event, illness, or injury in service, to include a documented left ankle sprain. b.) Provide an opinion as to whether it is at least as likely as not that the diagnosed left ankle osteoarthritis was aggravated by any in-service event, illness, or injury in service, to include a documented left ankle sprain. c.) Provide an opinion as to whether the left ankle osteoarthritis manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran and/or Appellant's competent lay claims regarding observable symptomatology. In providing answers to the above questions the examiner should consider and discuss the service treatment records including the documented in-service left ankle sprain. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.