Citation Nr: 18155511 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 09-04 524 DATE: December 4, 2018 ORDER Entitlement to an increased rating for intervertebral disc syndrome (IVDS) of the lumbar spine for the period prior to September 1, 2016 is dismissed. Entitlement to an increased rating for radiculopathy of the left lower extremity for the period prior to September 1, 2016 is dismissed. REMANDED Entitlement to a rating in excess of 10 percent disabling for a service-connected cervical spine disability for the period prior to April 2, 2014 is remanded. FINDINGS OF FACT 1. The Veteran expressed an intent to withdraw his claim for entitlement to a rating in excess of 20 percent disabling for the period prior to September 1, 2016 in a September 2017 communication. 2. The Veteran expressed an intent to withdraw his claim for entitlement to a compensable rating for the period prior to November 14, 2013 and a rating in excess of 20 percent disabling for the period from November 14, 2013 to September 1, 2016 in a September 2017 communication. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to an increased rating for IVDS have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for the withdrawal of the issue of entitlement to an increased rating for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues of entitlement to an increased rating for IVDS and radiculopathy of the left lower extremity are dismissed. A Veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. Additionally, the withdrawal is effective immediately upon receipt by VA. 38 C.F.R. § 20.204(b)(3). In a September 2017 communication, the Veteran stated, “I would like to withdraw two issues that are currently under [a]ppeal,” and that he was “completely satisfied” with the November 2016 rating decision and the “40% effective date 1 Sep[tember] 2016” for IVDS and the “20% effective date 1 Sep[tember] 2016” for radiculopathy of the left lower extremity associated with IVDS of the lumbar spine. In an August 2018 Joint Motion for Partial Remand, the parties indicated that, without a concession of error, the Board should reconsider its finding that the Veteran indicated his desire to withdraw the issue of increased ratings for IVDS and radiculopathy of the left lower extremity. The parties indicated that the Veteran’s statements may be ambiguous and the possibility remained that he was only satisfied with the ratings assigned from September 1, 2016. For the reasons stated below, the Board finds that the evidence of record does not reflect ambiguity in the Veteran’s desire to withdraw the respective issues in their entirety. The Board notes that the Veteran is rated as 20 percent disabled for IVDS for the period prior to September 1, 2016 and as 40 percent thereafter. Under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 indicate that disabilities of the lumbar spine can be rated as 10 percent, 20 percent, 40 percent, 50 percent, 60 percent, or 100 percent disabling based upon the applicable symptoms. See 38 C.F.R. 4.71a. Therefore, there is no possible schedular rating which exists for a disability of the lumbar spine between 20 percent and 40 percent disabling. As the Veteran stated he was satisfied with the effective date of his increase to a rating of 40 percent disabling from 20 percent disabling, this would indicate that he was satisfied with the 20 percent rating for the period prior to September 1, 2016. Otherwise, an earlier effective date for the increase would be necessary. The Veteran is also rated as noncompensably disabled for radiculopathy of the left lower extremity for the period prior to November 14, 2013, 10 percent disabled for the period from November 14, 2013 to September 1, 2016, and 20 percent disabled for the period since September 1, 2016. Similar to his rating for IVDS, Diagnostic Code 8520, for paralysis of the sciatic nerve, allows for ratings of 10 percent, 20 percent, 40 percent, 60 percent, and 80 percent disabling based on the applicable symptoms. Accordingly, in expressing his satisfaction with the effective date of September 1, 2016 for the increase to 20 percent disabling, the Veteran indicated that he was not claiming his rating for the period from November 14, 2013 to September 1, 2016 should be higher than 10 percent disabling. While theoretically the Veteran could still have intended to claim that a compensable rating was warranted for the period prior to November 14, 2013, the Board finds that this is not so in this instance, based on his complete September 2017 communication, that he intended to claim an increased rating for a single specified period while generally withdrawing all other claims. The Board further notes that the evidence of record generally indicates that the Veteran’s respective conditions have progressively worsened over the course of the instant appeal, and therefore it is unlikely that he intended to claim that a rating in excess of the respective 40 percent and 20 percent ratings, which he expressed satisfaction with in his September 2017 communication, was warranted for either disability for the period prior to September 1, 2016. Additionally, at an October 2017 VA examination, the Veteran stated that he was satisfied with the adjudication of his case and that he was completely satisfied with the outcome. He further indicated that he previously submitted documentation withdrawing his claim related to unemployability and did not wish to pursue any further claim related to his back, neck, or peripheral nerve conditions. The Board notes that while the Veteran specifically indicated his desire to continue his claim related to his cervical spine disability in the September 2017 communication, his statements at the October 2017 examination nevertheless provide evidence in support of the contention that he intended to withdraw the entirety of his claims related to IVDS and radiculopathy of the left lower extremity. Furthermore, the Veteran did not include any information or argument pertaining to his claims for IVDS or radiculopathy of the left lower extremity in December 2017 or November 2018 briefs concerning the instant appeal. Instead, the Veteran solely discussed entitlement to an increased rating for his service-connected cervical strain after submitting the September 2017 communication indicating an intent to withdraw his claims regarding IVDS and radiculopathy of the left lower extremity. While the Joint Motion for Partial Remand’s inclusion of the possibility of ambiguity in withdrawing the subject claims indicates some inherent question as to the clarity of the intent to withdraw the claims, the Board notes that it specifically stated that there was no concession of error in the Board’s prior dismissal of the claims pursuant to the September 2017 communication. Based upon the totality of the evidence of record, the Board finds that the Veteran clearly intended to withdraw any remaining claims for an increased rating regarding IVDS and/or radiculopathy of the left lower extremity for the period prior to September 1, 2016, and the issues were properly dismissed. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent disabling for a service-connected cervical spine disability for the period prior to April 2, 2014 is remanded. The Veteran is seeking a rating in excess of 10 percent disabling for his service-connected cervical spine disability for the period prior to April 2, 2014. For the reasons discussed below, the matter on appeal must be remanded to ensure that he is accorded full compliance with the statutory duty to assist. As indicated in the August 2018 Joint Motion for Partial Remand, the Veteran was afforded examinations in March 2007, March 2008, December 2010, and June 2013; however, the opinions provided by the examiners in the respective examinations did not adequately address the possibility of additional functional loss during flare-ups of his symptoms or after repetitive use. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that a supplementary medical opinion is necessary to fully address the severity of the Veteran’s cervical spine disability for the period prior to April 2, 2014. 38 C.F.R. § 3.159 (c)(4). The Board notes that the August 2018 Joint Motion for Partial remand also stated that the aforementioned examinations were additionally inadequate regarding their failure to fully comply with the criteria set out in 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 168-170 (2016). Specifically, the parties indicated that a new VA examination that “tests for pain throughout the range of motion in both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint” was necessary. However, the Board finds that such a new examination would offer no evidence concerning the issue of the Veteran’s symptoms for the period prior to April 2, 2014 which would be more probative than that already contained in the record. Regardless of whether or not a new examination was conducted, no examiner could measure the range of motion of the Veteran’s cervical spine for the relevant period over four years after that period ended. Further, the Board remanded the general issue of entitlement to an increased rating for a cervical spine disability in August 2017 in order to obtain an examination which complied with Correia, and such examination was conducted in September 2017. There is no indication that the Veteran contends that the September 2017 examination was inadequate, and, as stated in the August 2018 Joint Motion for Partial Remand, the Veteran did not “contest the part of the Board’s decision which denied entitlement to a rating in excess of 20 [percent] from April 2, 2014, to September 22, 2016, for a chronic cervical strain and a rating in excess of 30 [percent] as of September 22, 2016. Therefore, obtaining similar measurements for the range of motion testing recorded in the September 2017 examination would only serve to provide duplicative information further removed from the actual time frame of relevance. Accordingly, remanding the issue for a new examination due to a failure of past examinations to comply with Correia would not yield any evidence more probative than that already contained in the evidence of record, and it is therefore unnecessary. The parties also stated that the respective examiners who conducted the relevant examinations failed to provide an adequate opinion which addressed any additional functional loss resulting from a flare-up of symptoms or from repetitive use. Therefore, the examiners failed to comply with the criteria set out in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires that an examiner estimate a veteran’s’ functional loss due to flare-ups based upon the available relevant information, or state the reasons why an estimation cannot be given. See Id. The parties indicated that this was an additional reason why remand for a new examination was necessary. The Board finds that remanding for a new in-person examination would not serve to provide any pertinent information concerning the Veteran’s symptoms over four years prior which could not be otherwise obtained from a new medical opinion. Thus, a remand for a medical opinion concerning the criteria set out in Sharp is appropriate. Further, the examiner providing the medical opinion should contact the Veteran to elicit any relevant information concerning flare-ups of his symptoms and/or functional loss during repetitive use for the period prior to April 2, 2014. Accordingly, remand is necessary to obtain a medical opinion which adequately addresses the criteria set out in Sharp. The AOJ should also obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. The matter is REMANDED for the following action: 1. The AOJ should also obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. 2. Obtain a medical opinion form an appropriate examiner concerning the severity of the Veteran’s cervical spine disability for the period prior to April 2, 2104. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note that such review was completed in the opinion report. The examiner should express an opinion as to whether there would be additional functional impairment on repeated use over time or during flare-ups based upon the Veteran’s symptoms for the period prior to April 2, 2014. The examiner should contact the Veteran and attempt to elicit any relevant information available. The examiner should estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations, and should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel