Citation Nr: 1804012 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-24 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for mild temporal mandibular joint (TMJ). 2. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The issue of entitlement to a disability rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During the Veteran's May 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative expressed his intent to withdraw the appeal of entitlement to a disability rating in excess of 10 percent for mild temporal mandibular joint (TMJ). CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to a disability rating in excess of 10 percent for mild TMJ have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204 (b). During the Veteran's May 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative expressed his intent to withdraw the appeal of entitlement to a disability rating in excess of 10 percent for mild TMJ. Accordingly, the Board does not have jurisdiction to review the Veteran's appeal and the issue must be dismissed. ORDER Entitlement to a disability rating in excess of 10 percent for mild temporal mandibular joint (TMJ) is dismissed. REMAND With regard to the Veteran's remaining appeal, entitlement to a disability rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine, the Board finds additional development is necessary before deciding the matter. The Veteran last underwent a VA examination to assess the severity of his lumbar spine DDD in December 2012, more than five years ago. Since then, the Veteran has asserted the condition has worsened. See Hearing Testimony, May 2017; Statement in Support of Claim, June 2013; See also Statement in Support of Claim, January 2013 (statement from the Veteran's spouse as well as additional statement from the Veteran indicating his low back pain increased over time). Given the length of time since the last VA examination, as well as the Veteran's assertion that the condition has worsened, the Board must remand to obtain a new VA examination to assess the current severity of the Veteran's service-connected disability. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If it is deemed any pertinent records do not exist, or that additional attempts to obtain these records would be futile, the record should be annotated to reflect such, to specifically include a formal finding of unavailability, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Afford the Veteran a VA examination to determine the current degree of severity of his service-connected lumbar spine DDD. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing of the lumbar spine, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes any required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. Undertake any other development determined to be warranted, and then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2014). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs