Citation Nr: 21040517 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 16-19 212A DATE: July 5, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is dismissed. Entitlement to service connection for bilateral upper extremity radiculopathy is dismissed. REMANDED Entitlement to a compensable rating for left knee instability prior to April 10, 2018 is remanded. Entitlement to a compensable rating for right knee instability prior to April 10, 2018 is remanded. FINDINGS OF FACT 1. In April 2020 and May 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran reflecting his desire to withdraw his appeal for TDIU. 2. In April 2020 and May 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran reflecting his desire to withdraw his appeal for service connection for bilateral upper extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to service connection for bilateral upper extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to July 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board denied entitlement to separate ratings based on left and right knee lateral instability prior to April 10, 2018. The Veteran appealed the Board's decision denying service connection for heart disease to the United States Court of Appeals for Veterans Claims (Court), which, in January 2021, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's March 2020 decision and remanded the matter to the Board consistent with the terms of the joint motion. Regrettably, more development is still necessary, and the Board finds that remand is warranted to obtain a new VA examination. The Board also notes that entitlement to service connection for sleep apnea and a bilateral foot disability were previously on appeal under the legacy system. In an October 2020 VA Form 10182 Notice of Disagreement, the Veteran opted to continue these claims under the Appeals Modernization Act (AMA) system. Accordingly, the claims for entitlement to service connection for sleep apnea and a bilateral foot disability have been assigned a new, AMA docket and are not addressed herein. 1. Entitlement to TDIU 2. Entitlement to service connection for bilateral upper extremity radiculopathy In April 2020 and May 2021 signed written statements drafted prior to the promulgation of a decision on the appeals, the Veteran stated that he wanted to withdraw the following issues on appeal: (1) entitlement to TDIU; and (2) entitlement to service connection for bilateral upper extremity radiculopathy. 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. In the present case, the Veteran has withdrawn his appeal of the claims noted above and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and the appeal of these matters is dismissed. REASONS FOR REMAND 1. Entitlement to a compensable rating for left knee instability prior to April 10, 2018 is remanded. 2. Entitlement to a compensable rating for right knee instability prior to April 10, 2018 is remanded. The Board finds that entitlement to a compensable rating for left and right knee instability prior to April 10, 2018 must be remanded in order to comply with the terms of the January 2021 JMR. The January 2021 JMR determined that the Board erred when it determined that medical evidence was more probative than lay evidence of record. The Board notes that May 2013, June 2013, September 2013, July 2015, August 2015, September 2016, May 2017, and January 2018 VA treatment records and May 2013 and September 2016 VA examiner's reports address the Veteran's balance, including the Veteran's lay reports regarding his balance. On remand, the VA examiner is asked to opine whether the Veteran's lay reports contained in the VA treatment records are medically consistent with a finding of instability of either knee. In addressing the September 2016 VA examiner's report, the JMR also stated that "... if the VA examiner in a case involving a joint (e.g. a knee joint) fails to comment on the impact to the Veteran's range of motion due to pain or functional loss during flareups, the examination opinion is inadequate and the Board errs to rely on it." As such, the Veteran has alleged that the September 2016 VA examiner's report is inadequate. Therefore, on remand, the VA examiner is asked to opine on any impacted to the Veteran's range of motion due to pain or functional loss during flareups. The VA examiner is also asked to opine whether any impact to the Veteran's range of motion due to pain or functional loss during flareups would have impacted the stability of either knee prior to April 10, 2018. Accordingly, the Board finds that remand is necessary to afford the Veteran a new VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of the Veteran's service-connected left knee and right knee disabilities. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The VA opinion must address whether the Veteran's service-connected left knee or right knee disabilities were manifested by instability prior to April 10, 2018, and if so, the severity of any such instability. The VA examiner is asked to review the Veteran's lay statements, including any lay reports noted in the VA treatment records, and determine whether the Veteran's lay reports were medically consistent with a finding of instability prior to April 10, 2018 for either knee. The VA examiner should consider the May 2013, June 2013, September 2013, July 2015, August 2015, September 2016, May 2017, and January 2018 VA treatment records which address the Veteran's stability or balance. If the VA examiner determines that the Veteran's lay reports were consistent with a finding of instability prior to April 10, 2018, the VA examiner is asked to opine as to the severity of the instability for each knee for that period. If it is not possible to determine the severity of any instability without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or after repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the VA examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.