Citation Nr: 1805125 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-04 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial compensable evaluation for right ear hearing loss. 2. Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine with lumbar radiculopathy, prior to March 15, 2011. 3. Entitlement to an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine, on and after March 15, 2011. 4. Entitlement to an evaluation in excess of 30 percent for right lower extremity lumbar radiculopathy, on and after March 15, 2011. 5. Entitlement to an evaluation in excess of 30 percent for left lower extremity lumbar radiculopathy, on and after March 15, 2011. 6. Entitlement to an evaluation in excess of 10 percent for bilateral pes planus, prior to March 15, 2011. 7. Entitlement to an evaluation in excess of 30 percent for bilateral pes planus, on and after March 15, 2011. 8. Entitlement to service connection for a bladder disability, to include as secondary to service-connected disease or injury. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to March 15, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision, a July 2011 rating decision, and an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In the December 2008 rating decision, the RO found there was clear and unmistakable error in a September 2002 rating decision that denied service connection for right ear hearing loss, and as a result, the RO granted service connection for right ear hearing loss with a noncompensable evaluation, effective July 13, 2001. The December 2008 rating decision also granted an increased evaluation of 20 percent for degenerative joint disease with mild lumbar radiculopathy, effective October 20, 2008, and denied an evaluation in excess of 10 percent for bilateral pes planus. In a July 2011 rating decision, the RO granted an increased evaluation of 40 percent for degenerative joint disease of the lumbar spine, effective March 15, 2011, granted separate service connection for right lower extremity lumbar radiculopathy with a 30 percent evaluation effective from March 15, 2011, granted separate service connection for left lower extremity lumbar radiculopathy with a 30 percent evaluation effective from March 15, 2011,and granted an evaluation of 30 percent for bilateral pes planus, effective March 15, 2011. The July 2011 rating decision also granted entitlement to a TDIU, effective March 15, 2011. In July 2013, the Board remanded the case for further development. The remand required the RO to take appropriate steps to request any updated treatment records, issue an SOC related to the issue of entitlement to service connection for a bladder condition, and to afford the Veteran new VA examinations. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2017 the Veteran testified before the undersigned Veterans Law Judge (VLJ) regarding the issues of entitlement to service connection for a bladder disability as well as a TDIU, and only testified before this VLJ for the issues still on appeal below. A transcript of that hearing is of record. The issues of entitlement to service connection for a bladder disability, to include as secondary to service-connected degenerative joint disease of the lumbar spine with lumbar radiculopathy, and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to March 15, 2011 are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. At a July 2017 Hearing, the Veteran informed the Board that he wished to withdraw his appeal related to an initial compensable evaluation for right ear hearing loss. 2. At a July 2017 Hearing, the Veteran informed the Board that he wished to withdraw his appeal related to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine with lumbar radiculopathy, prior to March 15, 2011. 3. At a July 2017 Hearing, the Veteran informed the Board that he wished to withdraw his appeal related to an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine, on and after March 15, 2011. 4. At a July 2017 Hearing, the Veteran informed the Board that he wished to withdraw his appeal related to an evaluation in excess of 30 percent for right lower extremity lumbar radiculopathy, on and after March 15, 2011. 5. At a July 2017 Hearing, the Veteran informed the Board that he wished to withdraw his appeal related to an evaluation in excess of 30 percent for left lower extremity lumbar radiculopathy, on and after March 15, 2011. 6. Entitlement to an evaluation in excess of 10 percent for bilateral pes planus, prior to March 15, 2011. 7. At a July 2017 Hearing, the Veteran informed the Board that he wished to withdraw his appeal related to an evaluation in excess of 30 percent for bilateral pes planus, on and after March 15, 2011. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an initial compensable evaluation for right ear hearing loss have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine with lumbar radiculopathy, prior to March 15, 2011have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine, on and after March 15, 2011 have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an evaluation in excess of 30 percent for right lower extremity lumbar radiculopathy, on and after March 15, 2011have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an evaluation in excess of 30 percent for left lower extremity lumbar radiculopathy, on and after March 15, 2011 have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an evaluation in excess of 10 percent for bilateral pes planus, prior to March 15, 2011 have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an evaluation in excess of 30 percent for bilateral pes planus, on and after March 15, 2011 have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Appeals must be withdrawn in writing except for appeals withdrawn on the record at a hearing. Id. In July 2017, the Veteran testified before the undersigned VLJ and indicated through his representative that based upon a prior conversation, all of his appeals except for entitlement to service connection for a bladder disorder, and the effective date of individual unemployability have been resolved. Accordingly, the Board does not have jurisdiction to review this particular appeal with respect to these other issues, and the appeal to this extent is dismissed. ORDER The appeal on the issue of entitlement to an initial compensable evaluation for right ear hearing loss is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine with lumbar radiculopathy, prior to March 15, 2011 is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine, on and after March 15, 2011 is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 30 percent for right lower extremity lumbar radiculopathy, on and after March 15, 2011 is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 30 percent for left lower extremity lumbar radiculopathy, on and after March 15, 2011 is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 10 percent for bilateral pes planus, prior to March 15, 2011 is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 30 percent for bilateral pes planus, on and after March 15, 2011 is dismissed. REMAND A remand is necessary for additional development. A. Bladder Disability An October 2011 rating decision denied service connection for a bladder disability. A Notice of disagreement with that determination was received in May 2012. The Veteran was afforded a September 2011 VA examination. Normal urinary bladder function without incontinence was identified. A May 2012 private medical opinion from Dr. B. H. concluded that the Veteran has been suffering from urinary incontinence for about five years due to a back injury. The Veteran was subsequently afforded a September 2012 VA examination. The VA examiner identified urinary incontinence. The VA examiner opined that the Veteran's urinary incontinence is not related to his back problems, but is related to the Veteran's benign prostatic hypertrophy, which is not service connected. VA and private medical opinions are inconsistent as to both the cause and date of onset of a bladder disability. Consequently, the Board finds it necessary to remand this matter to resolve an inconsistency in the record. In particular, the May 2012 private medical opinion is inconsistent with the findings of the September 2012 VA examiner. Additionally, significant time has passed, and the Veteran testified regarding ongoing treatment from Dr. B. H. for his bladder condition, as well as a remote recollection of a Compensation and Pension examiner opining that this could be related to his back condition. B. Entitlement to a TDIU prior to March 15, 2011 In December 2010, the Veteran submitted a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability), claiming that he had to stop working due to his service-connected disabilities. In the July 2011 rating decision, the RO granted the Veteran's claim of entitlement to a TDIU and assigned an effective date of March 15, 2011, noting that the schedular criteria listed in 38 C.F.R. § 4.16(a) for TDIU were first met at that time. In this instance, the Veteran's potential rating for a bladder disability may impact his evaluation for purposes of a TDIU prior to March 15, 2011. As a TDIU is dependent upon the degree of impairment from service-connected disabilities, it is inextricably intertwined with the claim being remanded. Remand of the inextricably intertwined TDIU claim is therefore required as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records and any new private medical records, and associate them with the Veteran's claims folder. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the etiology of the Veteran's bladder disability. The VA examiner is asked to opine whether the Veteran's bladder disability is proximately due to, the result of, or aggravated by the Veteran's service-connected degenerative joint disease of the lumbar spine with lumbar radiculopathy. The examiner should provide a rationale for all opinions expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim for service connection for a bladder disability and for a TDIU prior to March 15, 2011 based on the entirety of the evidence. If the claims remain denied, issue the Veteran and his representative a SSOC. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs