Citation Nr: 1304493 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 00-16 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable evaluation for right ear hearing loss. 2. Entitlement to a total rating based on individual unemployability prior to October 19, 2011. 3. Entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte. [The issues of entitlement to service connection for right radical nephrectomy due to right renal cell carcinoma and entitlement to a temporary total evaluation during convalescence following right radical nephrectomy due to right renal cell carcinoma will be addressed in a contemporaneous Board decision.] REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to December 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO). In June 2001, the Veteran participated in a Board hearing pursuant to his claim of entitlement to an increased rating for his service-connected lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte. The Veterans Law Judge conducting the hearing has since retired. In December 2007, the Veteran was notified of this and was asked if he wished to participate in another hearing with a different Veterans Law Judge. The Veteran responded that he did not want another hearing and requested that his claim be considered on the evidence of record. In June 2009, the Veteran submitted a claim of entitlement to a total rating based on individual unemployability (TDIU), which was accepted as a claim of entitlement to increased ratings for each of his service-connected disabilities. Thereafter, no proper development or adjudicative action was undertaken with respect to his service-connected lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte. It appears as though the RO erroneously conflated this issue with the pending issue of entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte, which was remanded by the Board in October 2009. Consequently, the Board finds that the June 2009 claim of entitlement to a rating in excess of 40 percent for lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte, has not been properly developed or adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and the claim is referred to the RO for appropriate action. The issues of entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte, and entitlement to TDIU prior to October 19, 2011, are REMANDED to the RO. VA will notify the Veteran if further action is required. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to a compensable rating for right ear hearing loss. CONCLUSION OF LAW The criteria for withdrawal of the appeal by the Veteran for the issue of entitlement to a compensable rating for right ear hearing loss have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(a), (b), (c) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the veteran or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). In a September 2010 statement, the Veteran expressed a desire to withdraw his claim of entitlement to a compensable evaluation for right ear hearing loss. He further articulated his understanding that he would need to file a new claim in order to obtain a higher rating for his service-connected right ear hearing loss, and that the effective date thereof would be the date of the new claim, not the date he originally filed for an increased rating. Following the September 10, 2010 statement, neither the Veteran nor his attorney submitted a document that could be construed as a timely of notice of disagreement with the underlying rating decision. 38 C.F.R. §§ 20.201, 20.204(c) (2012). Based on the above, no allegation of error of fact or law remains before the Board for consideration with regard to this issue. As such, the Board finds that the Veteran has withdrawn this claim, and accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to a compensable evaluation for right ear hearing loss, and it is dismissed. ORDER The appeal as to the issue of entitlement to a compensable evaluation for right ear hearing loss is dismissed. [CONTINUED ON NEXT PAGE] REMAND I. Entitlement to TDIU prior to October 19, 2011 In May 2012, the RO issued two, separate supplemental statements of the case involving several different issues. Among the claims that the RO continued the denial of was entitlement to TDIU prior to October 19, 2011. Attached to both May 2012 supplemental statements of the case was an Appeal Election Status form that provided the Veteran the option of (1) requesting that his appeal be forward to the Board for appellate review or (2) withdrawing the appeal. The Veteran returned one of these forms to the RO in May 2012. He indicated that he wished to withdraw his appeal, but did not elaborate as to which claim(s) in the May 2012 supplemental statements of the case he intended this to apply. Given this confusion, the RO contacted the Veteran telephonically in June 2012. The RO explained to the Veteran that he had received two May 2012 supplemental statements of the case, and explained which issues were considered in each of those supplemental statements of the case. The Veteran stated that he understood what he had received and understood which issues were pending before VA. He then informed the RO that he was "satisfied with receiving 100% for [TDIU] effective October 19, 2011." He further stated that he "no longer wanted to pursue the appeal for those issues." Based on the above, it appears as though no allegation of error of fact or law remains before the Board. 38 C.F.R. §§ 20.202, 20.204(b). However, the Board acknowledges that the Veteran and his attorney submitted a variety of documents dated after the May/June 2012 withdrawal. Through these documents, the Veteran and his attorney provided additional evidence and argument in support of the Veteran's claim of entitlement to TDIU prior to October 19, 2011. The regulation governing withdrawal of appeals, 38 C.F.R. § 20.204, is clear and unequivocal. It provides that a withdrawal may be made by an appellant or authorized representative (38 C.F.R. § 20.204(a)); must be in writing (unless on the record at a hearing), must identify the veteran and appellant, and must list the issue being withdrawn from appeal (unless the entire appeal is being withdrawn) (38 C.F.R. § 20.204(b)(1) ); must be filed at the RO (unless the appellant has been notified that the file was transferred to the Board)(38 C.F.R. § 20.204(b)(2) ); and is effective (when filed with the RO) when received by the RO (38 C.F.R. § 20.204(b)(3)). Under 38 C.F.R. § 20.204(c) the withdrawal is deemed a withdrawal of a notice of disagreement and of a substantive appeal (if filed). However, withdrawal of the original notice of disagreement and/or substantive appeal does not preclude the Veteran from filing a new notice of disagreement and/or substantive appeal as to the issue(s) withdrawn, "provided such filings would be timely under these rules if the appeal withdrawn had never been filed." 38 C.F.R. § 20.204(c). Albeit unclear, the Veteran utilized the form provided to him by VA (attached to the May 2012 supplemental statement of the case) to demonstrate his desire to withdraw his claim of entitlement to TDIU prior to October 19, 2011. To clear up any confusion, the RO contacted the Veteran in order to ensure that the correct claim(s) was/were withdrawn. The Veteran made clear that he understood which claims were pending before VA and then explicitly expressed his desire to withdraw his claim of entitlement to TDIU prior to October 19, 2011. The combination of the May 2012 Appeal Election Status form and the Veteran's telephonic clarification satisfies the regulatory requirements for withdrawing a claim. 38 C.F.R. § 20.204. However, the Board must ascertain whether the Veteran timely submitted a new notice of disagreement subsequent to the executed withdrawal of his claim of entitlement to TDIU prior to October 19, 2011. 38 C.F.R. § 20.204(c). Entitlement to TDIU was granted via a rating decision dated on December 2, 2011. As such, the Board must review all of the documents submitted after the withdrawal of the claim, but that are still dated within one year of December 2, 2011 (i.e., December 2, 2012) to determine whether the Veteran submitted a new, timely notice of disagreement. Generally, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2012). In a September 10, 2012 statement, the Veteran stated that he wanted to continue with his claim of entitlement to an earlier effective date for TDIU. This statement was attached to a brief submitted by the Veteran's attorney wherein ongoing dissatisfaction or disagreement with the December 2, 2011 rating decision was expressed. Although neither the Veteran's September 10, 2012 statement nor the brief to which it was attached was captioned as or intended to serve as a notice of disagreement, the Board accepts them as such. Consequently, the Board finds that the Veteran has filed a new, timely notice of disagreement with the December 2, 2011 rating decision. Id. Given that the Veteran executed a valid withdrawal of his claim of entitlement to TDIU prior to October 19, 2011, but timely submitted a new notice of disagreement, the regulations require VA to treat the claim as though the original notice of disagreement and substantial appeal never occurred. 38 C.F.R. § 20.204(c). As such, with a new, timely notice of disagreement of record, and no new statement of the case, the Board must remand the Veteran's claim of entitlement to TDIU prior to October 19, 2011 in order for the RO to issue a statement of the case and to give the Veteran an opportunity to perfect an appeal of said claim by submitting a new, timely substantive appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). To the extent that the Veteran and his attorney are seeking to restore appellate status to the Veteran's claim of entitlement to TDIU prior to October 19, 2011 by implicitly alleging that the Veteran withdrew his withdrawal of the appeal, the Board can find no statute or regulation authorizing a withdrawal of a withdrawal. The Board does not have the authority to award a grant that is not authorized by law. See 38 U.S.C.A. §§ 501, 7104 (West 2002 & Supp. 2012). As such, retaining appellate status is not permissible, the Board does not have jurisdiction to address the merits of the Veteran's claim, and, thus, a remand as described above is required. II. Entitlement to a Rating in Excess of 20 Percent from March 31, 1997 to November 29, 1999 for Lumbar Muscle Strain with History of Low Back Pain, Narrowing of the L5-S1 Intervertebral Disc Space, and Osteophyte, The above-captioned claim involves an extensive and complicated adjudicative history that requires a detailed discussion in order provide context for this remand. The Board will provide said discussion herein. For the sake of clarity and simplicity, the Board will refer to the Veteran's service-connected lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte, as his "low back disability." In January 1994, the Veteran submitted a claim of entitlement to a rating in excess of 10 percent for his low back disability. After this claim was denied in a February 1995 rating decision, he timely submitted a notice of disagreement. The denial of his claim was continued in an April 1996 statement of the case. The Veteran then submitted a substantive appeal in March 1997 that was deemed untimely by the RO. With that said, however, the RO accepted the Veteran's March 1997 substantive appeal as a new claim of entitlement to a rating in excess of 10 percent for his low back disability. In a November 1997 rating decision, the RO denied the Veteran's claim. In June 1998, the Veteran submitted a variety of treatment reports, including the results from a January 1998 magnetic resonance imaging of his low back. No further development or adjudication of the claim followed. On November 25, 1998, the Veteran submitted another claim of entitlement to a rating in excess of 10 percent for his service-connected low back disability. In a February 1999 rating decision, the rating assigned to the Veteran's low back disability was increased to 20 percent, effective November 25, 1998. The Veteran then timely filed a notice of disagreement. In a September 1999 statement of the case, the rating assigned to his low back disability was maintained. For reasons unknown to the Board, the RO then issued a December 1999 rating decision wherein the rating assigned to the Veteran's low back disability was continued. The Veteran filed a timely notice of disagreement. The rating assigned to his low back disability was maintained in a January 2000 statement of the case. After filing a timely substantive appeal, the denial of the Veteran's claim was continued in an April 2001 supplemental statement of the case and then certified to the Board for appellate review. In an October 2001 decision, the Board determined that the February 1999 rating decision was on appeal, and then denied the Veteran's claim. Following the Board's October 2001 decision, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2004 memorandum decision, the Court vacated the Board's October 2001 decision, finding that the Board failed to adequately address lay evidence of back pain as it pertained to functional limitation. The Court remanded the issue to the Board for an adequate statement of the reasons and bases for the decision reached. In January 2005, the Board remanded the Veteran's claim in order to afford him the opportunity to submit updated treatment records and to afford him a VA examination to assess the severity of his low back disability. While the claim was in remand status, the RO issued a December 2005 rating decision wherein it increased the rating assigned to the Veteran's low back disability to 40 percent, effective September 26, 2003. In May 2006, the RO issued a supplemental statement of the case wherein it maintained the ratings already assigned. The 40 percent rating assigned to the Veteran's low back disorder (effective September 26, 2003) was again continued in a June 2007 supplemental statement of the case. The RO then issued a separate supplemental statement of the case in July 2007 wherein it denied a rating in excess of 10 percent prior to November 25, 1998 and denied a rating in excess of 20 percent prior to September 26, 2003 for the Veteran's service-connected low back disability. The RO then remitted the matter to the Board for further appellate review. In a May 2008 decision, the Board found that the November 1997 rating decision was on appeal despite its previous finding that the February 1999 rating decision was on appeal. The Board then increased the rating assigned to the Veteran's low back disability to 20 percent, effective November 29, 1999, and to 40 percent on and after November 29, 1999. The Veteran again appealed to the Court. In January 2009, the Veteran's representative and VA's Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's May 2008 decision as it pertained to whether the Veteran was entitled to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for his low back disability. Specifically, the parties agreed that clarification was required as to whether a September 1997 VA examination included the administration of a Goldthwait's sign test. The parties also agreed that the Board's May 2008 decision did not include an adequate assessment as to whether the Veteran's claim should have be referred for extraschedular consideration and, thus, a remand for adequate reasons and bases was necessary. In January 2009, the Court issued an order effectuating the directives of the January 2009 Joint Motion. The Veteran's claim was then remanded to the Board. In October 2009, the Board remanded the Veteran's claim of entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for his low back disability in order to obtain a supplemental opinion from the September 1997 VA examiner as to whether a Goldthwait's sign test was administered. If the September 1997 VA examiner was unavailable, the RO was to make the Veteran's claim file available to a new VA examiner in order to obtain an opinion as to whether the results from the September 1997 VA examination indicated that a Goldthwait's sign test was administered. Thereafter, the RO was to readjudicate the Veteran's claim and, if any benefit remained denied, remit the claim to the Board for further appellate review. In December 2009, the September 1997 VA examiner provided a clarifying opinion as to whether he administered a Goldthwait's sign test during the September 1997 VA examination. In a December 2010 supplemental statement of the case, the RO referenced the September 1997 VA examiner's December 2009 supplemental opinion, but proceeded to adjudicate the issue of whether the Veteran was entitled to a rating in excess of 40 percent for his low back disability, presumably on and after November 29, 1999. Subsequently, the RO readjudicated the issue of entitlement to a rating in excess of 40 for the Veteran's low back disability in supplemental statements of the case dated in August 2011, January 2012, and May 2012. The RO then remitted the Veteran's claim to the Board for further appellate review. The Board acknowledges the complexity of the adjudicative history involved with the Veteran's above-captioned claim and will attempt to simplify this history in order to ease future review of the claim. The Veteran's March 1997 substantive appeal, which was deemed untimely, but accepted as a new claim, is the claim on appeal. This claim was denied in a November 1997 rating decision. Although the Veteran did not submit a notice of disagreement to that decision, he submitted new and material evidence within the ensuing appellate period. 38 C.F.R. §§ 3.156(b), 20.304 (2012). By submitting new and material evidence within the appellate period, the finality of the November 1997 rating was vitiated. Further, said submission triggered the VA's obligation to issue another adjudicative action wherein the new and material evidence was considered as part of the March 1997 claim. See Bond v. Shinseki, 659 F.3d 1362 (2011); Buie v. Shinseki, 24 Vet. App. 242 (2010); Young v. Shinseki, 22 Vet. App. 461 (2009). Consequently, the Veteran's March 1997 claim was still pending before VA when he filed a new "claim" of entitlement to an increased rating for his low back disability on November 25, 1998. Given that the March 1997 claim was still pending at the time, the November 25, 1998 submission was redundant and, thus, not a new claim. Instead, it will be considered by the Board to be a statement in support of the March 1997 claim. Following the November 1997 rating decision, the next adjudicative action with respect to the Veteran's March 1997 claim of entitlement to an increased rating for his low back disability did not occur until the February 1999 rating decision. Thereafter, the Veteran timely perfected an appeal. Although the Veteran perfected an appeal following the February 1999 rating decision, the March 1997 claim was originally denied in the November 1997 rating decision and, thus, the Board finds that this is the decision that is presently on appeal. Ultimately, after a prolonged appellate adjudication, the January 2009 Joint Motion narrowed the scope of the Veteran's March 1997 claim. Specifically, the only outstanding aspect of this claim was whether the Veteran was entitled to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for his low back disability. The Board remanded this claim in October 2009 for further development and readjudication in accordance with the directives of the January 2009 Joint Motion. To date, following the Board's October 2009 remand, the RO has not adjudicated the issue of entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for the Veteran's low back disability. The RO's adjudications of the Veteran's claim following the October 2009 Board remand were erroneously limited to whether he was entitled to a rating in excess of 40 percent for his low back disability, presumably from a date sometime after November 29, 1999. As such, the Board finds that the RO did not substantially comply with the directives of the October 2009 remand. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the Board finds that a remand is required in order for the RO to consider the Veteran's claim of entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for his low back disability, to include consideration of the September 1997 VA examiner's December 2009 supplemental opinion. Accordingly, the case is REMANDED for the following action: 1. The RO must issue the Veteran a statement of the case and notification of his appellate rights on the issue of entitlement to TDIU prior to October 19, 2011. See 38 C.F.R. §§ 19.29, 19.30 (2012). The RO must inform the Veteran that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed. 38 C.F.R. § 20.202. If the Veteran perfects an appeal, it must be certified to the Board for appellate review. 2. The claim of entitlement to a rating in excess of 20 percent from March 31, 1997 to November 29, 1999 for lumbar muscle strain with history of low back pain, narrowing of the L5-S1 intervertebral disc space, and osteophyte, must be readjudicated, to include, but not be limited to, consideration of the September 1997 VA examiner's December 2009 supplemental opinion. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).