Citation Nr: 1756445 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-04 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to a compensable rating for degenerative arthritis of the lumbar spine with spondylolisthesis status post lumbar laminectomy. REPRESENTATION Veteran represented by: Heather Van Hoose, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from June 1991 to June 2011. This appeal to the Board of Veterans' Appeals (Board) arises from a February 2012 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. A Notice of Disagreement (NOD) was received in May 2012 and a Statement of the Case (SOC) was issued in November 2013. In January 2014, the Veteran filed his Substantive Appeal via VA Form 9. Thus, the Veteran perfected a timely appeal of these issues. In May 2017, the Veteran testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. The Veteran's claim for entitlement to a compensable rating for degenerative arthritis of the lumbar spine with spondylolisthesis status post lumbar laminectomy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT During the May 2017 Board hearing, the Veteran withdrew his appeal of the issues of entitlement to service connection for a left knee disability and entitlement to service connection for a right knee disability. There is no allegation of error in fact or law in this matter remaining for appellate consideration. CONCLUSION OF LAW The criteria for withdrawal of the appeal are met with respect to the claims of entitlement to service connection for a left knee disability and entitlement to service connection for a right knee disability; the Board has no further jurisdiction to consider an appeal of this matter. 38 U.S.C. § 7105 (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION An appeal may be withdrawn by an appellant or by his or her representative. 38 C.F.R. § 20.204 (a). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204 (b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). At his Board hearing in May 2017, prior to the issuance of a final decision, the Veteran expressed his desire to withdraw his appeal of the issues of entitlement to service connection for a left knee disability and entitlement to service connection for a right knee disability. The undersigned Veterans Law Judge confirmed that request on the record. Because the Veteran has withdrawn the issue on appeal, there is effectively no longer any remaining allegation of error of fact or law. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board will dismiss the appeal of the issues of entitlement to service connection for a left knee disability and entitlement to service connection for a right knee disability. ORDER The appeal concerning the issue of entitlement to service connection for a left knee disability is dismissed. The appeal concerning the issue of entitlement to service connection for a right knee disability is dismissed. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that he is entitled to a compensable rating for his service connected degenerative arthritis of the lumbar spine with spondylolisthesis status post lumbar laminectomy. Service treatment records (STRs) indicated that the Veteran reported limitation in walking, stiffness, fatigue, spasms, pain, and weakness. The Veteran had tenderness, spasm, guarding of the thoracolumbar spine and reported painful motion of the thoracolumbar spine. An MRI in February 2000 showed left paracentral disc herniation with S1 nerve root involvement and the Veteran was diagnosed with herniated nucleus pulposus at the time. The Veteran underwent surgery in July 2000. At a February 2011 examination, prior to leaving service, the Veteran reported stiffness, fatigue, spasms, decreased motion, weakness, and pain. He reported that the condition had existed since 2000 and that he had limitation in walking because of the spine condition. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine, status post lumbar laminectomy and residual spondylolisthesis. The examination revealed no evidence of radiating pain on movement, muscle spasm, tenderness, guarding of movement or weakness. Muscle tone and musculature were normal. There was no ankylosis of the thoracolumbar spine and inspection of the spine revealed normal head position with symmetry in appearance. The Veteran's thoracolumbar spine had flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right rotation to 30 degrees, and left rotation to 30 degrees. There was no objective evidence of pain with range of motion testing and the Veteran's combined range of motion was 240 degrees. X-ray revealed degenerative arthritis and bilateral neural arch defect with first degree spondylolisthesis at L4-L5. At his Board hearing in May 2017, the Veteran's representative asserted that while the examiner indicated that there was no painful motion in the Veteran's back, that the record indicated otherwise. The Veteran had accommodations for his back condition in service that included a waiver on performing sit-ups and being allowed to use a bike in physical training as opposed to running. The Veteran further asserted that he had pain in his back, especially with any type of physical activity, and that he had been prescribed medication for the back pain. The Veteran also asserts that his symptoms have worsened since the time of his February 2011 examination and that he has received subsequent treatment for his back condition at the VA Medical Center in Beckley, West Virginia, which is not currently of record. Given the Veteran's testimony regarding the severity of his lumbar spine disability; the length of time since the Veteran's most recent examination; and because there are outstanding post-service treatment records, the Board finds that a new examination is warranted in order to fully evaluate the severity of the Veteran's lumbar spine disability. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination when there is evidence of a change in the disability since the last examination. Snuffer v. Gober, 10 Vet App 400 (1997). Given the potential of worsening, and because there is insufficient evidence upon which the Board can assess the current severity of the Veteran's lumbar spine disability, the Board finds that a new examination, with findings responsive to applicable rating criteria, is needed to fully and fairly evaluate the Veteran's claims for an initial compensable rating. Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous.") Additionally, subsequent to the February 2011 examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the examination of record, the Board finds that it is incomplete in this regard and requires further medical guidance, in light of the recent holding in Correia. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claims. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional (VA and non-VA) records pertaining to treatment of his service-connected lumbar spine disability, particularly any records from the VAMC in Bleckley, West Virginia. The Veteran should also be afforded the opportunity to identify and submit any outstanding private records. 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, schedule the Veteran for a VA examination by an appropriate examiner so as to determine the level of impairment due to his service-connected lumbar spine disability. ? The claims file and a copy of this Remand are to be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the Remand have been reviewed. ? All studies and tests needed to ascertain the status of the service-connected lumbar spine disability, to include all indicated tests and studies to include x-ray examination and diagnostic imaging studies, if deemed necessary, should be performed and written interpretation of such should be associated with the examination report. ? Based on the examination of the Veteran, and review of the record, the examiner should fully describe the functional effects of the Veteran's service-connected lumbar spine disability on his activities of daily living. ? In particular, the examiner should describe what types of activities would be limited because of the service-connected lumbar spine disability, and what types of activities would not be limited (if any), and whether any limitation on activities is likely to be permanent. ? The examiner should generally record pertinent medical complaints, symptoms, and clinical findings. ? The examiner should describe, in degrees of excursion, active and passive ranges of motion for the lumbar spine, as well on weight-bearing and non-weight bearing, demonstrated on examination. ? The examiner should identify the presence and degree of, or absence of the following: muscle atrophy; weakness; incoordination; bone deformities; or, any other manifestations that would demonstrate disuse or functional impairment due to pain attributable to the service-connected lumbar spine disability. ? With respect to the subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement of the lumbar spine, and if so, at what point (expressed in degrees if possible) such pain is elicited during such testing. ? The examiner should comment on whether the Veteran's subjective complaints are consistent with the objective findings. ? If the severity of the manifestation cannot be quantified, the examiner should so indicate. ? The examiner is requested to express an opinion as to the following: (1) whether pain limits functional ability during flare-ups, or when the lumbar spine is used repeatedly over a period of time, and this determination, if feasible, should be expressed in terms of additional loss of range of motion due to pain on use or during flare-ups; and (2) whether as a result of the service-connected lumbar spine disability the Veteran exhibits any weakened movement, excess fatigability or incoordination, and these determinations, if feasible, should be expressed in terms of additional loss of range of motion resulting. ? The examiner is requested to identify the presence, or absence of ankylosis of the lumbar spine. If the presence of ankylosis is identified, this determination should be expressed in terms of whether the ankylosis is favorable or unfavorable; and, if feasible, in terms of the degrees of flexion or extension in which the lumbar spine is ankylosed. ? The examiner should identify any nerves and muscle groups affected and state whether the level of impairment is best characterized as mild, moderate, moderately severe, or severe. ? If any nerve involvement is wholly sensory, the examiner should so indicate. Complete, clearly-stated rationale for the conclusions reached must be provided. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the claim for a compensable rating for degenerative arthritis of the lumbar spine with spondylolisthesis status post lumbar laminectomy. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).