Citation Nr: 18131249
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 18-20 032
DATE:	August 31, 2018
ORDER
Entitlement to a disability rating in excess of 40 percent for status post gunshot wound, retained foreign body, with ankylosis (previously rated as left knee (formerly evaluated under DC 5257 and 5299-5255)) is dismissed.
REMANDED
Entitlement to a compensable evaluation left hip extension is remanded.
Entitlement to a compensable evaluation for limitation of flexion of the left hip is remanded.
Entitlement to an increased rating for left hip adduction currently evaluated at 10 percent disabling is remanded.
FINDING OF FACT
In July 2018, prior to the promulgation of a decision, the Veteran expressed a desire to withdraw his appeal for entitlement to a disability rating in excess of 40 percent for status post gunshot wound, retained foreign body, with ankylosis of the left knee.
CONCLUSION OF LAW
The criteria for withdrawal of the appeal for entitlement to a disability rating in excess of 40 percent for status post gunshot wound, retained foreign body, with ankylosis (previously rated as left knee (formerly evaluated under DC 5257 and 5299-5255)) have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Entitlement to a disability rating in excess of 40 percent for status post gunshot wound, retained foreign body, with ankylosis (previously rated as left knee (formerly evaluated under DC 5257 and 5299-5255))
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.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 the appellant or by his authorized representative. See 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, withdrawal of an issue must be done in writing. See 38 C.F.R. § 20.204 (b).
During the Veteran’s July 2018 Board hearing the Veteran’s representative clearly stated that the Veteran was satisfied with the currently disability rating and would not be further pursuing the appeal for entitlement to a disability rating in excess of 40 percent for status post gunshot wound, retained foreign body, with ankylosis of the left knee. The issue was not discussed any further during the hearing. 
The Board finds the Veteran’s July 2018 Board hearing testimony to be clear and unambiguous showing the Veteran’s intent not pursue his appeal of the ratings assigned for his status post gunshot wound disability. See 38 C.F.R. § 20.302. 
Consequently, the Board finds that the Veteran has withdrawn his appeal for increased rating for his service-connected status post gunshot wound, retained foreign body, with ankylosis (previously rated as left knee (formerly evaluated under DC 5257 and 5299-5255)). Hence, there remain no allegations of errors of fact or law for appellate consideration of that issue at this time. Accordingly, the Board does not have jurisdiction to review the appeals for increased rating for his service-connected entitlement to a disability rating in excess of 40 percent for status post gunshot wound, retained foreign body, with ankylosis (previously rated as left knee (formerly evaluated under DC 5257 and 5299-5255)) and it is dismissed.
REASONS FOR REMAND
1. Entitlement to a compensable evaluation left hip extension is remanded.
2. Entitlement to a compensable evaluation for limitation of flexion of the left hip is remanded.
3. Entitlement to an increased rating for left hip adduction currently evaluated at 10 percent disabling is remanded.
Upon a review of the record, a remand is required prior to the adjudication of the Veteran’s claims of entitlement to increased disability ratings for his service connected left hip conditions. 
The Veteran was recently afforded a VA hip and thigh examination in February 2018 which found flexion from 0 to 100 degrees; extension from 0 to 10 degrees; abduction from 0 to 30 degrees; and adduction from 0 to 10 degrees. Adduction was also limited such that the Veteran could not cross his legs.
However, several months later, during the Veteran’s July 2018 Board hearing, the Veteran’s treating physician testified that the Veteran’s limitation of motion of the left hip was more limited than the findings contained in the February 2018 examination report.  Specifically, the physician reported that flexion of the Veteran’s left hip was limited to 45 degrees, with no ability to adduct or extend his hip.
Given the short time between the February 2018 VA examination and the July 2018 Board hearing and the significant differences in the reported range of motion findings, the Board finds an updated VA examination is necessary to resolve the conflicting evidence offered by the Veteran’s physician. 
The matters are REMANDED for the following action:
Schedule the Veteran for a VA examination to assess the nature and severity of the Veteran’s service-connected left hip disabilities. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file should be made available for the examiner to review in conjunction with the examination and the examination report should reflect that the records were reviewed.
The examiner should determine the effective range of motion in the Veteran’s hips and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing, describing objective evidence of painful motion, if any, during each test. If any of these findings are not possible, please provide an explanation.
The examiner should further measure and record all subjective and objective symptomatology, to include any ankylosis and any functional impairment. The examiner should report any additional limitation of motion, in degrees, due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. This information is required by VA regulations as interpreted by the courts. The Veteran is competent to report limitation of motion during flare-ups.
The examiner should also comment on the July 2018 testimony provided by the Veteran’s physician. The examiner should show adequate consideration of the Veteran’s medical history, as documented in treatment records and prior VA examinations, and reconcile any conflicting evidence as to the nature and etiology of any reported or documented symptoms. For any residuals all relevant information needed to rate under the relevant diagnostic code should be provided.

 
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Nelson, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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