Citation Nr: 18153457 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-41 660 DATE: November 28, 2018 ORDER The claim of entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with insomnia disorder, generalized anxiety disorder, panic disorder, and chronic motor tic disorder, is dismissed. REMANDED Entitlement to a disability rating in excess of 10 percent for a thoracolumbar spine disability is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a disability rating in excess of 10 percent for a right ankle disability is remanded. FINDING OF FACT In a November 2017 written statement, the Veteran requested to withdraw his claim for an increased initial rating for PTSD. CONCLUSION OF LAW The criteria for withdrawal of a claim of entitlement to an increased initial disability rating for PTSD have been 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 July 2011 to July 2015. This matter comes to the Board of Veterans’ Appeals (Board) from a December 2015 rating decision which, in pertinent part, granted service connection for a thoracolumbar spine disability, evaluated at 10 percent; granted service connection for left and right ankle disabilities, each evaluated at 10 percent; granted service connection for left and right knee disabilities, each evaluated at 10 percent; and granted service connection for posttraumatic stress disorder (PTSD) with insomnia disorder, generalized anxiety disorder, panic disorder, and chronic motor tic disorder, evaluated at 50 percent. In a May 2017 rating decision, the RO granted an increased initial disability rating of 70 percent for service-connected PTSD. 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with insomnia disorder, generalized anxiety disorder, panic disorder, and chronic motor tic disorder. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In November 2017, the Veteran submitted a written statement that requested to withdraw the increased rating claim for PTSD on appeal, and to move forward with the five other issues. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to the issue of an increased initial rating for PTSD. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. The Board notes that in November 2017, the Veteran filed a new claim for an increased rating for his service-connected PTSD. This issue remains pending before the RO, and is not the Board at this time. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for a thoracolumbar spine disability is remanded. VA treatment records submitted by the Veteran reflect that in October 2017, the Veteran was referred to physical therapy for complaints of increased back pain. October and November 2017 VA physicial therapy treatment records reflect that the Veteran’s range of motion was limited by 25 percent, and a popping sound was noted in extension. The Veteran was last afforded a VA examination in May 2015. As the Veteran’s thoracolumbar spine disability may have increased in severity since the Veteran was last examined by VA, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his thoracolumbar spine disability. 2. Entitlement to disability ratings in excess of 10 percent for left and right knee disabilities are remanded. While the record contains a contemporaneous VA examination dated in May 2015 regarding the Veteran’s left and right knee disabilities, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examination does not contain passive range of motion measurements and the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, including whether there is additional loss of range of motion. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left and right knee disabilities. 3. Entitlement to disability ratings in excess of 10 percent for left and right ankle disabilities are remanded. While the record contains a contemporaneous VA examination in May 2015 regarding the Veteran’s left and right ankle disabilities, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examination does not contain passive range of motion measurements and the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, including whether there is additional loss of range of motion. The examination is also internally inconsistent, in that the examiner initially indicated that the Veteran did not report flare-ups, and did not include a description of such, but then found that the Veteran reported flare-ups and that the examination supported the Veteran’s statements describing functional loss during flare-ups. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left and right ankle disabilities. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. 2. Schedule the Veteran for an examination of the current severity of his thoracolumbar, bilateral knee, and bilateral ankle disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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 each of the thoracolumbar, left and right knee, and left and right ankle disabilities alone and discuss the effect each 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). 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel