Citation Nr: 21041082 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-43 884 DATE: July 8, 2021 ORDER The appeal as to the timeliness of the February 6, 2017 notice of disagreement is dismissed. The appeal as to entitlement to a compensable evaluation for a left knee scar status post replacement is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for submandibular gland excision (claimed as throat damage) is remanded. Entitlement to an evaluation in excess of 30 percent for status post total right knee arthroplasty is remanded. Entitlement to an evaluation in excess of 10 percent for total left knee replacement prior to June 22, 2016, and 30 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At the November 2019 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw his appeal as to the timeliness of the February 6, 2017 notice of disagreement. 2. At the November 2019 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw his appeal as to a compensable evaluation for his left knee scar status post replacement. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the timeliness of the February 6, 2017 notice of disagreement have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal as to a compensable evaluation for a left knee scar status post replacement have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (legacy). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013, April 2014, and October 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. 1. The appeal as to the timeliness of the February 6, 2017 notice of disagreement is dismissed. 2. The appeal as to entitlement to a compensable evaluation for left knee scar status post replacement is dismissed. 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 authorized representative. Id. In the present case, at the February 2021 Board hearing, the Veteran expressly withdrew his appeal with regards to the claims for the timeliness of the February 6, 2017 notice of disagreement and a compensable evaluation for a left knee scar status post replacement. The Board finds that the Veteran's withdrawal of his claims was explicit, unambiguous, and done with a full understanding of the consequences of such action on part of the Veteran. See Acree v. O'Rourke, 891 F.3d 1009, 1012-1013 (2018). Accordingly, the claims as to the timeliness of the February 6, 2017 notice of disagreement and a compensable evaluation for left knee scar status post replacement are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for his diagnosed sleep apnea. At the February 2021 Board hearing, the Veteran's spouse and his representative asserted that the functional limitations from his knee disabilities resulted in the Veteran's obesity and thus, his sleep apnea. The Veteran has submitted treatise evidence in support of this assertion. See also National Institute of Health article submitted by the Veteran; June 2012 VA treatment record (noting a history of obesity). The Board notes that obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). At present, there is no opinion regarding a causal link between his service-connected knee disabilities and the claimed sleep apnea, to include consideration of obesity as an intermediate cause. Upon remand, VA should obtain an opinion addressing this contention. 2. Entitlement to compensation under 38 U.S.C. § 1151 for submandibular gland excision (claimed as throat damage) is remanded. The Veteran seeks compensation under 38 U.S.C. § 1151 related to a June 2012 right knee replacement at the VA facility in Miami. Specifically, the Veteran contends that the VA clinician used improper tools to open his throat while anesthetizing him. See July 2012 VA Form 21-4138; July 2012 correspondence. This caused a larynx tear that eventually developed into an infection, resulting in the loss of teeth, residual pain from surgery to treat the infection, slurred speech, pain and limited motion in the neck, facial deformity, and neck weakness. See also November 2012 correspondence. The evidence indicates that there may be outstanding relevant VA treatment records as to this claim. In a September 2016 private opinion, A. Canty, RN, BSN, CCM, LNC, indicated that a VA clinician completed an "Adverse Event Note" on June 25, 2012. This VA clinical note does not appear to be associated with the file and should be added to the record for the Board's review, if available. In addition, the RO should ensure a complete set VA treatment records for the entirety of the Veteran's hospitalization are associated with the claims file. 3. Entitlement to an evaluation in excess of 30 percent for status post total right knee arthroplasty is remanded. 4. Entitlement to an evaluation in excess of 10 percent for total left knee replacement prior to June 22, 2016 and 30 percent, thereafter, is remanded. At the February 2021 Board hearing, the Veteran asserted that his bilateral knee disabilities have increased in severity since last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his knee disabilities. 4. Entitlement to a TDIU is remanded The Veteran contends his service-connected knee disabilities and depressive disorder render him unable to maintain employment. Entitlement to a TDIU is part and parcel of the Veteran's appeal for higher ratings for his service-connected bilateral knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In relevant part, it is part and parcel with the June 7, 2012 claim for an increased rating for the service-connected right knee disability. The Veteran reports that he last worked in May 2012 because of his knees. The schedular criteria for TDIU, as set forth in 38 C.F.R. § 4.16 (a), is only met for part of the appeal period. However, the issue of entitlement to an increased rating for the right knee disability is remanded. The issue of entitlement to a TDIU is intertwined with that issue and is remanded as well. The matters are REMANDED for the following action: 1. Ensure a complete set of VA treatment records from the VA medical center in Miami, including the June 2012 to July 2012 hospitalization, are added to the claims file. 2. Obtain the June 25, 2012 "Adverse Event Note" reportedly completed by a VA clinician referenced in the September 2016 private medical opinion from A. Canty, RN, BSN, CCM, LNC. 3. Obtain the Veteran's VA treatment records since January 2021. 4. Obtain an opinion regarding the etiology of the Veteran's sleep apnea. The examiner should review the claims file and remand. The examiner should opine whether the Veteran's sleep apnea is at least as likely as not proximately due to his service-connected right and left knee disabilities. It is asserted that the functional limitations from the service-connected bilateral knee disabilities resulted in the Veteran becoming obese and thus, developing sleep apnea. Therefore, the examiner should opine as to the following: a) Did the Veteran experience obesity during the pendency of the claim, that is since August 2016? b) If so, is it at least as likely as not that the Veteran's service-connected left and/or right knee disabilities either caused or aggravated such obesity? c) If the examiner determines that the Veteran's service-connected left and/or right knee disabilities either caused or aggravated his obesity, then was his obesity a substantial factor in causing his sleep apnea? d) Would the sleep apnea not have occurred but for obesity caused by the service-connected disability? A complete rationale for should be provided. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Does pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time? Are any of these factors associated with limitation of motion? If so, the examiner must indicate the degree of range of motion lost. The examiner should provide an estimate, if at all possible, of the additional impairment based on the clinical evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.