Citation Nr: 21040459 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-41 941 DATE: July 3, 2021 ORDER Entitlement to a rating in excess of 30 percent for right knee chondromalacia with traumatic degenerative joint disease is dismissed. REMANDED Entitlement to a rating higher than 0 percent for nocturnal periodic leg movements is remanded. Entitlement to a rating higher than 0 percent for left ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At the June 2020 Board hearing, the Veteran requested to withdraw the claim for an increased rating for a right knee disability. CONCLUSION OF LAW The criteria for dismissal of entitlement to an increased rating for right knee chondromalacia with traumatic degenerative joint disease 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 1979 to January 1987, and December 2006 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision from the Department of Veterans Affairs (VA) agency ofg original jurisdiction (AOJ). In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. Right knee The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal and may be made by the appellant or the authorized representative. 38 C.F.R. § 19.55(a). In this case, at the June 2020 Board hearing, the Veteran indicated that the restoration of the 30 percent rating for the right knee was a full grant of the benefits sought on appeal and he was satisfied with his current rating. The undersigned asked the Veteran if he understood that he withdrew his appeal for the claim, and the consequences of such, and the Veteran indicated that he understood. Thus, the Veteran's withdrawal was explicit, unambiguous, and informed. Therefore, the Veteran has withdrawn his appeal of the claim for an increased rating for a right knee disability and there remain no allegations of errors of fact or law for appellate consideration with regard to this claim. Accordingly, the Board does not have jurisdiction to review the appeal of that claim, and the appeal is dismissed. REASONS FOR REMAND A review of the record shows there are outstanding, potentially relevant Federal records. A notice received into evidence in October 2015 stated that the Social Security Administration (SSA) had found the Veteran disabled as of May 8, 2015. While at the June 2020 Board hearing, the Veteran stated the disability benefits were due to his heart disability, no records from the SSA have been associated with the claims file. The SSA records may be relevant to the current appeal, and must be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, the Board notes there are outstanding private treatment records. In February 2020, the Veteran submitted a written authorization for VA to obtain records from several facilities. According to the March 2020 call summary, the AOJ attempted to retrieve the records from Greenbrier Family Clinic, but no records were received. There is no evidence that the AOJ notified the Veteran that the AOJ was unable to obtain the records. In July 2020, the Veteran submitted two pages of Greenbrier Family Clinic records. If the Veteran was informed of the AOJ's inability to retrieve the records, he may have been able to retrieve them, especially in light of his submission of the two pages. Under these circumstances, the failure to notice could potentially have frustrated the Veteran's own opportunity to obtain the records. Leg movements At the June 2020 Board hearing, the Veteran testified that his nocturnal periodic leg movements had increased in frequency and severity since the April 2018 VA examination. Specifically, his prescriptions have been increased due to increased movement. Given the increased symptomatology, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Left ear hearing loss At the June 2020 Board hearing, the Veteran testified that his left ear hearing loss had worsened. Specifically, he stated that his hearing aids ran out of batteries faster because he needs to turn the volume up higher than before to hearing. He also contends that he is basically deaf in the left ear. The Board notes that the right ear hearing loss met the criteria for VA hearing loss at the May 2018 VA examination. In addition, the May 2018 VA examiner provided a positive nexus opinion regarding etiology. Given the evidence of increased symptomatology, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). TDIU At the June 2020 Board hearing, the Veteran raised the issue of TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran indicated that he could no longer work at his previous postmaster job due to excessive noise exposure and leg movements. The Board finds a claim for TDIU is inferred as part of the increased rating claims. Because a decision on the claims for increased rating that are being remanded could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Therefore, further consideration of the claim for a TDIU must be deferred. The matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain any VA and private treatment records identified by the Veteran that are not already of record. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. All attempts to locate records must be documented in the claims file. 2. Request from the SSA complete copies of any disability decisions made concerning the Veteran and copies of the medical records that served as the basis for any decisions. Make reasonable efforts to obtain the records, including at least one follow-up request if no response is received. If the records are not available, a negative reply is required. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected nocturnal periodic leg movements. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also comment on the functional impairment resulting from the Veteran's nocturnal periodic leg movements. 4. Schedule the Veteran for VA audiology examination to determine the current severity of his service-connected left ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also comment on the functional impairment resulting from the Veteran's left ear hearing loss. 5. Then, readjudicate the claims. If any benefit sought remains denied, issue an appropriate supplemental statement of the Case, and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.