Citation Nr: 18154673 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 15-06 167 DATE: December 3, 2018 ORDER Entitlement to an earlier effective date for a 30 percent rating for a cervical spine disability is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for a cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for the claim of entitlement to an earlier effective date for a 30 percent rating for a cervical spine disability. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to an earlier effective date for a 30 percent rating for a cervical spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to October 1974 and May 1979 to May 1997. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing has been associated with the record. Entitlement to an earlier effective date for a 30 percent rating for a cervical spine disability is remanded. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or the authorized representative. 38 C.F.R. § 20.204. At the July 2018 hearing, the Veteran explicitly requested the withdrawal of the appeal regarding the claim for entitlement to earlier effective date for a 30 percent rating for a cervical spine disability. Thus, there remain no allegations of errors of fact or law for appellate consideration regarding that issue on appeal. Accordingly, the Board does not have jurisdiction to review that appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to an earlier effective date for service connection for a cervical spine disability is remanded. The Veteran underwent VA examination of the cervical spine in August 2011 and December 2014. At the July 2018 Board hearing, the Veteran essentially asserted that his symptoms had increased in severity since the most recent examinations. Where the evidence of record does not indicate the current state of the Veteran’s disability, a more contemporaneous VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Because of the Veteran’s assertions of increased symptoms, remand is required to obtain updated treatment records and provide the Veteran a contemporary VA examination that evaluates the current symptomatology of the cervical spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran has testified that he stopped working due to service-connected disabilities. The Board finds that a remand is necessary to obtain a medical opinion regarding the impact of all service-connected disabilities on the Veteran’s ability to obtain and maintain employment. The matters are REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. 2. Schedule the Veteran for a VA orthopedic examination, by an appropriate physician. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be accomplished, and all clinical findings must be reported in detail. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. The examiner must provide the following: (a.) Identify the existence, and frequency or extent, as appropriate, of all symptoms associated with the cervical spine disabilities (b.) Conduct range of motion testing for active and passive motion and weight-bearing and nonweight-bearing of the cervical spine, expressed in degrees. (c.) Provide ranges of cervical spine motion with specific findings as to whether there is objective evidence of pain on motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (d.) State whether or not ankylosis of the cervical spine is shown. (e.) Opine whether it is at least as likely as not (50 percent probability or greater) that the service-connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is found to be capable of work, state what type of work and what accommodations would be necessary due to the service-connected disabilities. Address the June 2012 multiple impairment questionnaire, May 2015 opinion from Dr. B.K., and the Veteran’s July 2018 testimony about the severity of his symptoms. If the Veteran is found to be unemployable due to service-connected disabilities, opine as to what date the Veteran became unemployable due to service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel