Citation Nr: 18152501 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-21 095 DATE: November 23, 2018 ORDER The application to reopen a claim of service connection for hypertension is dismissed. The application to reopen a claim of service connection for perianal muscle spasms is dismissed. Entitlement to an effective date earlier than November 18, 2013 for left lower extremity sciatica is dismissed. Entitlement to an effective date earlier than November 18, 2013 for the award of service connection for right lower extremity sciatica is dismissed. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for bilateral neurological disability of the upper extremities, to include as secondary to service-connected degenerative disc disease of the cervical spine, is remanded. Entitlement to an initial rating higher than 10 percent for left lower extremity sciatica is remanded. Entitlement to an initial rating higher than 10 percent for right lower extremity sciatica is remanded. Entitlement to a rating in excess of 30 percent for mid-carpal instability of the right wrist is remanded. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT In May 2016, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issues of whether new and material has been received to reopen claims of service connection for hypertension and perianal muscle spasms and entitlement to earlier effective dates for the award of service connection for left and right lower extremity sciatica. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran, as to the issues of whether new and material evidence has been received to reopen claims of service connection for hypertension and perianal muscle spasms and entitlement to earlier effective dates for the award of service connection for left and right lower extremity sciatica are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to February 1985 and from September 1986 to March 2002. These matters come before the Board of Veterans’ Appeals (Board) from October 2013 and November 2014 rating decisions. As for characterization of the issues on appeal, the Board notes that the agency of original jurisdiction (AOJ) characterized the hypertension and perianal muscle spasm issues on appeal as only including the issues of entitlement to service connection for hypertension and perianal muscle spasms and adjudicated these issues on a de novo basis in the November 2014 rating decision and a March 2016 statement of the case. Regardless, claims of service connection for hypertension and perianal muscle spasms were initially denied by way of a final January 2002 AOJ rating decision. Thus, the Board has recharacterized the hypertension and perianal muscle spasm issues as whether new and material evidence has been received to reopen the claims of service connection for hypertension and perianal muscle spasms. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Hickson v. West, 11 Vet. App. 374, 377 (1998). Withdrawal of Appeal Whether new and material evidence has been received to reopen claims of service connection for hypertension and perianal muscle spasms and entitlement to effective dates earlier than November 18, 2013, for the award of service connection for left and right lower extremity sciatica 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. 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. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran’s representative submitted a signed statement from the Veteran in May 2016 in which the Veteran indicated that he wished to withdraw from appeal the issues of entitlement to service connection for hypertension and perianal muscle spasms and entitlement to earlier effective dates for the award of service connection for left and right lower extremity sciatica. This statement constitutes a valid withdrawal of the appeal, with respect to the issues of whether new and material evidence has been received to reopen the claims of service connection for hypertension and perianal muscle spasms and entitlement to earlier effective dates for the award of service connection for left and right lower extremity sciatica. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant”). The United States Court of Appeals for the Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O’Rourke, 891 F.3d 1009, fn. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). As the Veteran has withdrawn the appeal as to these issues, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and the appeal is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran contends that he has fibromyalgia associated with his service in the Southwest Asia theater of operations during the Persian Gulf War. His medical records reference a possible history of fibromyalgia, but there is current diagnosis of the disease. Regardless, there is evidence that the Veteran served in Southwest Asia and fibromyalgia is a medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for fibromyalgia because no VA examiner has determined whether the Veteran has current fibromyalgia or opined whether any such disability was incurred in service. Hence, an appropriate examination should be conducted upon remand. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are contained in the Gainesville Vista electronic records system and are dated to October 2012. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for bilateral neurological disability of the upper extremities, to include as secondary to service-connected degenerative disc disease of the cervical spine, is remanded. The Veteran contends that he has current bilateral neurological disability of the upper extremities associated with his service-connected cervical spine disability. He was most recently afforded a VA examination in October 2014 to assess the severity of his cervical spine disability and the physician who conducted the examination concluded that there was no evidence of any upper extremity radiculopathy. As the record currently stands, there is no other evidence of any currently diagnosed neurological disability of the upper extremities. As additional evidence is being sought upon remand (including another VA cervical spine examination and additional treatment records) which may document evidence of upper extremity neurological disability, the claim of service connection for bilateral neurological disability of the upper extremities is also being remanded. 3. Entitlement to initial ratings higher than 10 percent for left and right lower extremity sciatica are remanded. As explained below, the issue of entitlement to an increased rating for degenerative disc disease of the lumbar spine is being remanded to afford the Veteran a new VA examination. As additional information will be obtained during the requested VA back examination which is pertinent to the issues of entitlement to higher initial ratings for left and right lower extremity sciatica, Board action on these matters at this time would be premature. Hence, these matters are being remanded, as well. Also, all outstanding VA treatment records should be secured upon remand. 4. Entitlement to a rating in excess of 30 percent for mid-carpal instability of the right wrist is remanded. The evidence reflects that the Veteran’s right wrist disability may have worsened since he was last examined by VA in March 2013. For instance, a May 2016 statement from the Veteran references wrist symptoms and functional impairments caused by his wrist disability which suggest potential worsening of his wrist disability. Hence, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected right wrist disability. Also, all outstanding VA treatment records should be secured upon remand. 5. Entitlement to ratings in excess of 10 percent for degenerative disc disease of the lumbar spine and cervical spine are remanded. Although the record contains the reports of VA examinations regarding the Veteran’s service-connected back and cervical spine disabilities, most recently dated in March 2013 and October 2014, respectively, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination reports do not contain passive range of motion measurements or pain on both weight-bearing and non weight-bearing testing. Hence, the Veteran should be afforded new VA examinations upon remand. Also, all outstanding VA treatment records should be secured upon remand. 6. Entitlement to a TDIU due to service-connected disabilities is remanded. Because a decision on the remanded service connection and higher rating issues on appeal could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, a remand of the claim for a TDIU is required. Moreover, there is evidence that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities (see e.g., an April 2016 individual unemployability assessment from vocational consultant C. Barchi, M.Ed., CDMS). As the record currently stands, however, the percentage ratings for the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA’s Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). Therefore, if after the AOJ readjudicates the service connection and higher rating issues on appeal, the percentage ratings for the Veteran’s service-connected disabilities still do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the case should be referred to VA’s Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). Lastly, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for fibromyalgia, neurological disability of the upper and lower extremities, back disability, cervical spine disability, and right wrist disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for fibromyalgia, neurological disability of the upper and lower extremities, back disability, cervical spine disability, and right wrist disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records contained in the Gainesville Vista electronic records system for the period since October 2012; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any fibromyalgia. The examiner must opine whether any fibromyalgia experienced by the Veteran since approximately November 2013 (even if currently in remission or resolved) at least as likely as not (1) began during active service; or (2) is related to an in-service injury, event, or disease, including the joint symptoms documented in his service treatment records. The examiner must provide a rationale for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination of the current severity of his mid-carpal instability of the right wrist. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the right wrist. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right wrist disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must provide a rationale for any opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination of the current severity of his degenerative disc disease of the lumbar spine and left and right lower extremity sciatica. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s back disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also specify any nerves affected by the service-connected back disability and provide an opinion as to the severity of any paralysis, neuritis, or neuralgia. The examiner must provide a rationale for any opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination of the current severity of his degenerative disc disease of the cervical spine and to determine the nature and etiology of any neurological disability of the upper extremities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the cervical spine. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s cervical disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also opine whether any neurological disability of the upper extremities experienced by the Veteran since approximately November 2012 (even if currently in remission or resolved) at least as likely as not (1) began during active service; (2) manifested within one year after discharge from either period of active service; (3) is related to an in-service injury, event, or disease, including the upper extremity neurological symptoms and right wrist surgery documented in his service treatment records; (4) is caused by service-connected degenerative disc disease of the cervical spine; or (5) is aggravated by service-connected degenerative disc disease of the cervical spine. The examiner must provide a rationale for each opinion given. 7. After conducting any additional indicated development, readjudicate the issues on appeal. If, after the issues are readjudicated, the percentage ratings for the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), refer the case to VA’s Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). The Director (or his designee) should issue a memorandum addressing whether a TDIU is warranted under 38 C.F.R. § 4.16(b). The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel