Citation Nr: 22008062 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-37 784 DATE: February 11, 2022 ORDER Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee claimed as instability has been withdrawn. Entitlement to service connection for left ankle condition is granted. REMANDED Entitlement to service connection for hypertension to include as due to obesity is remanded. Entitlement to service connection for right hip condition is remanded. Entitlement to service connection for left hip condition is remanded. FINDINGS OF FACT 1. In August 2021, prior to the promulgation of a decision, the Board received written notification that the Veteran withdrew his claim for entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee claimed as instability. 2. The Veteran's left ankle disability is proximately due to his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee claimed as instability by the appellant (or his or her authorized representative) are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for left ankle condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to July 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38U.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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38C.F.R. §19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn his appeals for entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee, claimed as instability. During his July 2021 virtual hearing the Veteran testified that he discussed the issue with his representative and wished to withdraw his claim for entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee claimed as instability. Thereafter, in August 2021 correspondence, the Veteran's representative submitted written notification that the Veteran wished to withdraw his claim for patellofemoral pain syndrome, right knee, claimed as instability. As a matter of law, a withdrawal of an appeal is effective when received. 38 C.F.R. §19.55. Based on the Veteran's withdrawal of his claim for entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee claimed as instability the Board does not have jurisdiction to review the claim, and it is dismissed. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee claimed as instability is dismissed. Service Connection Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310. 1. Entitlement to service connection for left ankle condition to include as secondary to the Veteran's service-connected left knee disability. The Veteran contends that he is entitled to service connection for his left ankle disability because it is due to or proximately caused by his service-connected left knee disability. The Veteran is currently service connected for both a left knee disability and a right knee disability. In an October 2014 private opinion, after reviewing the evidence of record the Veteran's treating physician opined that the Veteran's left ankle disability is due to the altered gait he developed as a result of his left knee disability of patellofemoral syndrome. A June 2017 VA examination for the Veteran's ankle notes left ankle instability, with reduced range of motion including dorsiflexion to 18 degrees and planter flexion to 32 degrees. In the corresponding June 2017 medical opinion, the examiner opines that the Veteran's left ankle strain is a result of his left knee condition, noting that lateral movement of the left ankle results in pain radiating to his medial left knee. The examiner further noted that the Veteran's left foot has an inward position at rest and if the Veteran tries to straighten his ankle, he gets left knee pain. The Board affords probative weight to the October 2014 and June 2017 opinions of record as they are consistent with and supported by the medical evidence of record and supported by adequate rationale. Thus, based on evidence of a current disability and positive opinions noting that these disabilities are a result of the Veteran's service-connected left knee disability, entitlement to service connection for left ankle disability is warranted. Entitlement to service connection for left ankle disability secondary to the Veteran's service-connected left knee disability is granted. REASONS FOR REMAND 2. Entitlement to service connection for hypertension to include as due to obesity is remanded. At his July 2021 Board hearing, the Veteran testified that he believes his hypertension developed as a result of his service-connected knee disabilities. Specifically, he asserted that as a result of his knee pain, he exercised less and began gaining weight, which he believes led to his hypertension. Evidence of record shows that the Veteran has a current diagnosis of hypertension. The Veteran has been characterized as obese and has been noted to have a body mass index (BMI) ranging from 32 to 33. Obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. See VAOPGCPREC 1-2017 at 9-10. Therefore, when raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). Walsh v. Wilkie, 32 Vet. App. 300 (2020), VAOPGCPREC 1-2017. Remand is warranted for determining whether obesity is an intermediate step between the Veteran's service-connected disabilities and his hypertension. 3. Entitlement to service connection for right hip condition is remanded. 4. Entitlement to service connection for left hip condition is remanded. The Veteran contends that he is entitled to service connection for bilateral hip condition to include as secondary to his service-connected bilateral knee disability. Evidence of record shows that the Veteran has a current diagnosis of sacroiliitis. A June 2017 VA examination notes that the Veteran does not have a bilateral hip condition and that his pain symptoms are apparently a result of his bilateral SI joint/sacroiliitis. The examiner did not offer a nexus opinion for the Veteran's sacroiliitis. Although a Veteran may identify a particular disorder when he or files a claim, the scope of the claim cannot be limited only to the disorder stated, but must be considered a claim for any disorder that may reasonably be encompassed by several factors including the description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Where there is not a prior, final decision on one diagnosis based on competent medical evidence that justifies separating a new diagnosis into a separate claim, and the claim is still in the initial adjudicatory phase, the Veteran's statements do not limit the scope of the claim. Clemons, 23 Vet. App. at 5. Remand is appropriate for a new VA opinion regarding the etiology of the Veteran's hip pain to include sacroiliitis. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Obtain an opinion from an appropriate clinician as to the nature and likely etiology of the Veteran's obesity and hypertension. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on claims file review and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Opine as to whether it is at least as likely as not (50% or better probability) that service-connected bilateral knee disability caused the Veteran to become obese, to include as due to any lack of exercise resulting from service-connected bilateral knee pain. Why or why not? (b) If the answer to (a) is "no," opine as to whether the service-connected bilateral knee disability aggravated the Veteran's obesity, to include as due to any lack of exercise resulting from the service-connected bilateral knee disability. Why or why not? (c) Opine as to whether his obesity (or the aggravation of obesity per question (b)) was a substantial factor in causing hypertension. Why or why not? (d) Opine as to whether the Veteran would not have hypertension if he were not obese (or but for obesity aggravated by the service-connected bilateral knee disability per question (b)). Why or why not? The examiner's opinion should be based on a review of all evidence of record and supported by adequate rationale. The Veteran is presumed credible for the limited purpose of this examination. 3. Obtain an addendum opinion from an appropriate clinician and ask the following questions: (a.) Identify any diagnosed hip disability (to include pain resulting in functional impairment of earning capacity) during the relevant period on appeal. (b.) Is any hip disability, to include sacroiliitis, proximately due to or aggravated beyond its natural progression by the Veteran's service-connected bilateral knee disability? Why or why not? The term aggravation shall mean any incremental increase in the Veteran's disability, regardless of its permanence. The examiner's opinion should be based on a review of all evidence of record and supported by adequate rationale. The Veteran is to be presumed credible for the limited purpose of this examination. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.