Citation Nr: 18155987 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 574 DATE: December 6, 2018 ORDER The appeal of the increased rating claim for a left shoulder disability is dismissed. The appeal of the increased rating claim for left lower extremity radiculopathy is dismissed. The appeal of the increased rating claim for right lower extremity radiculopathy is dismissed. A schedular rating in excess of 40 percent for lumbar strain is denied. FINDINGS OF FACT 1. In a March 2017 statement and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his increased rating claims for a left shoulder disability and bilateral lower extremity radiculopathy. 2. Ankylosis of the spine is not shown; and incapacitating episodes having a total duration of at least six weeks during a 12-month period is not shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the increased rating claim for a left shoulder disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the increased rating claim for left lower extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the increased rating claim for right lower extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for a schedular rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from October 1980 to May 1991. Withdraw Claims 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 authorized representative. Id. In the present case, in a March 2017 statement, the Veteran expressly withdrew his appeal with regard to the issues of entitlement to increased ratings for a left shoulder disability and bilateral lower extremity radiculopathy prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed an increased rating claim for his lumbar spine disability in November 2012, which was denied by August 2013 and March 2014 rating decisions. The Veteran asserts that he is entitled to a higher rating. Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS with incapacitating episodes. A January 2013 VA examiner indicated that the Veteran had IVDS but that the Veteran did not have any incapacitating episodes over the previous 12 months. A March 2014 VA examiner indicated that the Veteran did not have IVDS. As such, there is no evidence showing that the Veteran has been prescribed any bed rest having a total duration of at least six weeks during a 12-month period, equivalent to a 60 percent rating, to treat his lumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine The Veteran’s treatment records do not reveal any finding of spinal ankylosis. The Veteran was afforded VA examinations for his lumbar spine in January 2013 and March 2014. Both VA examiners indicated that the Veteran did not have ankylosis of the spine. The Veteran was granted a 40 percent rating based on forward flexion of the thoracolumbar spine of 30 degrees or less. Under the current regulations, the only available ratings in excess of 40 percent require ankylosis of the entire thoracolumbar spine, which would be rated at 50 percent, or ankylosis of the entire spine, which would be rated at 100 percent. No objective medical evidence has shown any ankylosis in the Veteran’s spine, and no argument has been advanced to the contrary. As such, an orthopedic rating in excess of 40 percent is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran is in receipt of the maximum rating allowed based range of motion. The only ratings available are a 50 percent rating for ankylosis of the entire thoracolumbar spine and a 100 percent rating for ankylosis of the entire spine. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). (Continued on the next page)   Accordingly, a schedular rating in excess of 40 percent for a lumbar spine disability is not warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel