Citation Nr: 18148184 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-03 588 DATE: November 7, 2018 ORDER Entitlement to service connection for degenerative disc disease of the cervical spine is dismissed. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is dismissed. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is dismissed. REMANDED Entitlement to service connection for bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus, is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome, lumbar train and scoliosis is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDING OF FACT At her November 2018 Video Conference hearing, the Veteran stated on the record that she wished to withdraw her appeal of the issues of service connection for degenerative disc disease of the cervical spine and increased ratings for left lower extremity radiculopathy and right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of the issue of an increased rating for left lower extremity radiculopathy have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal of the issue of an increased rating for right lower extremity radiculopathy have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1994 to April 1998. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 Video Conference hearing. Evidence in the record suggests that the Veteran has been diagnosed with multiple foot conditions; therefore, the Board will broadly construe the issue of service connection for bilateral pes planus as a claim for service connection for a bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that “may reasonably be encompassed by” the description of the claim and symptoms and other submitted information). 1. Entitlement to service connection for degenerative disc disease of the cervical spine 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy 3. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy An appeal may be withdrawn by an appellant or his or her authorized representative 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. At the November 2018 Video Conference Hearing, the Veteran confirmed on the record that she wished to withdraw her appeal of the issues of service connection for degenerative disc disease of the cervical spine and increased ratings for left lower extremity radiculopathy and right lower extremity radiculopathy. The undersigned Veteran’s Law Judge advised the Veteran of the impact of such a withdrawal and the Veteran confirmed her wish to withdraw. As the Veteran confirmed on the record that she wished to withdraw her appeal regarding these issues after being advised of the impact of the withdrawal, the Board finds that the withdrawal was explicit, unambiguous and done with the full understanding of the consequences of such an action. See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Accordingly, the Board does not have jurisdiction to review the issues of service connection for degenerative disc disease of the cervical spine and increased ratings for left lower extremity radiculopathy and right lower extremity radiculopathy, and the appeal as it pertains to those issues is dismissed. 38 C.F.R. § 20.204. REASONS FOR REMAND 1. Entitlement to service connection for bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus, is remanded. The Veteran contends that her flat feet, which preexisted service, were aggravated by running, wearing boots and the physical demands of service. She also contends that a lack of treatment of her feet disabilities during service aggravated her feet disabilities. The Veteran has not yet been afforded a VA examination regarding this issue. The Board notes that the Veteran’s September 1992 enlistment examination noted that the Veteran’s feet were abnormal and that she had mild hallux valgus. June 2012 private treatment records note a diagnosis of pes planus and plantar fasciitis and June 2015 VA treatment records contain diagnoses of pes planus and moderate hallux valgus bilaterally. Remand for a VA examination regarding whether the Veteran’s preexisting foot disability was aggravated by service is therefore required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome, lumbar train and scoliosis is remanded. At the November 2018 Video Conference hearing, the Veteran testified that her lumbar spine disability has worsened since her last VA examination in July 2013. Specifically, the Veteran testified that she has more flare ups with walking and standing and that her back pain has increased. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board also notes that since the July 2013 VA lumbar spine examination, the U.S. Court of Appeals for Veteran’s Claims (the Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations. The Court in Correia 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board’s review indicates that the July 2013 VA examination did not include the testing required under Correia and that a new examinations is required. 3. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is remanded. At the November 2018 Video Conference hearing, the Veteran testified that her PTSD had worsened since her last VA examination in July 2013. Specifically, the Veteran testified that her stress level, short-term memory loss and panic attacks have worsened and that her doctor increased the dosage of her sleep medication. As the evidence of record suggests her service-connected disability has increased in severity since the most recent VA examination, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issues of service connection for a bilateral foot disability and increased ratings for the lumbar spine and PTSD disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2016 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all providers who treat her disabilities. Make two requests for the authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current bilateral foot disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral foot disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran’s bilateral foot disability was aggravated beyond its nature progression by her service, to include allegations of aggravation from running and boot wear. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability. 4. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of her lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All necessary tests should be performed and all findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should also provide an opinion regarding the functional impact of the Veteran’s lumbar spine disability upon her ability to work. 5. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of her PTSD. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s PTSD upon her ability to work. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel