Citation Nr: 22018346 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-29 682 DATE: March 28, 2022 ORDER Entitlement to a compensable rating for erectile dysfunction is dismissed. Entitlement to a rating in excess of 10 percent for left hip limitation of extension is dismissed. REMANDED Entitlement to a rating in excess of 20 percent for left acetabular fracture status post-surgical removal of bone chips with residual decreased range of motion and pain is remanded. Entitlement to a rating in excess of 10 percent left hip limitation of flexion is remanded. FINDING OF FACT During the February 2022 Board hearing, the Veteran withdrew his claims for entitlement to a compensable rating for erectile dysfunction and entitlement to a rating in excess of 10 percent for left hip limitation of extension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a compensable rating for ED by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for left hip limitation of extension by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from February 1966 to February 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision, which granted service connection for left acetabular fracture status post-surgical removal of bone chips with residual decreased range of motion and pain and assigned a 20 percent rating, and service connection for erectile dysfunction and assigned a noncompensable rating. Additionally, a May 2018 rating decision granted service connection for left hip limitation of extension and assigned a 10 percent rating, and service connection for left hip limitation of flexion and assigned a 10 percent rating. In February 2022, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). WITHDRAWAL 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.205. 1. Entitlement to a compensable rating for ED 2. Entitlement to a rating in excess of 10 percent for left hip limitation of extension At the February 2022 Board hearing, the Veteran's representative indicated, and the Veteran confirmed on the record, that he wished to withdraw his claims for a compensable rating for ED and a rating in excess of 10 percent for left hip limitation of extension. A substantive appeal may be withdrawn on the record at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204. Since the Board had not yet issued a decision concerning those issues, the criteria are met for withdrawal of the appeal of those claims. Id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. See 38 U.S.C. § 7105(d). Accordingly, the Board does not have jurisdiction to review the appeal, and those claims are dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for left acetabular fracture status post-surgical removal of bone chips with residual decreased range of motion and pain is remanded. 2. Entitlement to a rating in excess of 10 percent left hip limitation of flexion is remanded. During the February 2022 Board hearing, the Veteran testified that his left acetabular and left hip limitation of flexion conditions have gotten worse since his last examination. Specifically, he stated that he will only leave the house when he has to, that he has to be careful when turning so that his hip does not give way, and that the pain will wake him from his sleep if he rolls over in bed. He testified that he experiences left hip pain every day which lasts for 20 minutes at a time or occurs if moving too fast; he takes narcotic medication for pain; his hip has given out while bending over due to intense pain; when using steps he always needs to have one hand on railing; he wears a special brace for support; uses a cane when walking down street; and has issues when he has to rise from a seated position. The Board notes that the Veteran was last afforded a VA examination for his service-connected left acetabular and left hip limitation of flexion conditions in August 2016. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83. In this instance, the Board finds that a new examination is warranted in order to fully evaluate the severity of the Veteran's left acetabular condition and left hip limitation of flexion. As such, a remand is necessary. Further, the Veteran testified that he has received treatment at a VA facility in Philadelphia, Pennsylvania for 4 or 5 years. As there is no evidence that these records have been obtained and associated with the Veteran's claims file, on remand, attempts must be made to obtain these records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a new VA examination to address the current severity of his service-connected left acetabular condition and left hip limitation of flexion. A copy of the Veteran's entire claims file and a copy of this REMAND must be forwarded to the appropriate medical clinician. The examiner should describe the severity, frequency, and duration of all symptomatology associated with these conditions. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and the degree of functional loss following repetitive use over time and with pain on use. Any functional loss should be described in degrees of range of motion loss. If the Veteran reports flare-ups, this should also be accomplished regarding the Veteran's flare ups. The examiner must denote at what point pain begins during all range of motion testing. If it is not possible to provide specific measurements based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups (if reported) or following repetitive use over time based on the other evidence of record and the Veteran's statements. The examiner must determine whether the Veteran's functional loss demonstrates the functional equivalent of ankylosis. If it is not possible to provide specific measurements without speculation, the examiner must also 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). All opinions expressed must be supported a complete rationale containing clear conclusions, supporting data, and a reasoned medical explanation connecting the two. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.