Citation Nr: 18159780 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 09-27 756 DATE: December 20, 2018 ORDER Entitlement to service connection for bronchitis, to include as secondary to asbestos exposure, is dismissed. Entitlement to service connection for the residuals of pneumonia, to include as secondary to asbestos exposure, is dismissed. Entitlement to an initial compensable evaluation for lichen planus of the bilateral wrists and ankles is dismissed. REMANDED Entitlement to an initial compensable rating for bilateral maxillary sinusitis is remanded. Entitlement to an initial rating in excess of 10 percent prior to October 26, 2015, and in excess of 30 percent thereafter, for depressive disorder with anxiety is remanded. Entitlement to an increased rating in excess of 10 percent for lumbar spine degenerative joint disease is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT During the travel Board hearing held on May 15, 2018, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, communicated his desire to withdraw his claims of entitlement to service connection for bronchitis and pneumonia as well as the claim of an increased rating for lichen planus of the wrists and ankles. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for bronchitis are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of entitlement to service connection for residuals of pneumonia are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal of entitlement to an initial compensable evaluation for lichen planus of the bilateral wrists and ankles are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1979 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana and a December 2015 rating decision by the RO in Montgomery, Alabama. Jurisdiction currently resides with the RO in Montgomery, Alabama. The issues of entitlement to service connection for the residuals of pneumonia and bronchitis, entitlement to higher initial ratings for lichen planus of the bilateral wrists and ankles, for sinusitis, for a lumbar spine disability, and entitlement to a TDIU were previously remanded by the Board in August 2011. In June 2017, the Board remanded the claims on appeal in order to afford the Veteran his request for an in-person hearing before the Board at the local RO. In May 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is in the claims file. Withdrawal of Appeals 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 by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeals of entitlement to service connection for bronchitis and residuals of pneumonia along with entitlement to an increased rating for lichen planus of the bilateral wrists and ankles. During the May 2018 travel Board hearing, his representative confirmed the withdrawals of the bronchitis, pneumonia, and lichen planus claims. Thus, there remain no allegations of errors of fact or law for appellate consideration in those matters. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to service connection for bronchitis and residuals of pneumonia along with entitlement to an increased rating for lichen planus of the bilateral wrists and ankles and those appeals are dismissed. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for sinusitis is remanded. VA treatment records were associated with the claims file subsequent to the issuance of the most recent SOC in April 2016. This evidence, which includes records of relevant care for sinusitis, has not been considered by the AOJ and there is no automatic waiver for evidence obtained by VA. The evidence also suggests a material change in the sinusitis symptoms. The Veteran underwent VA examination in August 2007. He reported on-going sinus problems, with a history of stuffiness of the nose occurring intermittently one-to-two days each month for the past several years. The examiner stated that there was no chronic sinusitis, purulent discharge, or crusting. The episodes occurred approximately once-a-month lasting one-to-two days with no incapacitating periods in the past year. The Veteran underwent further VA examination in November 2015. He reported that his last treatment for the condition was in approximately 2012 or 2013, other than self-medication with over-the-counter saline sprays. No non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting were noted in the past 12 months. Likewise, no incapacitating episodes requiring prolonged (4-6 weeks) antibiotics treatment were noted in the past 12 months. During the May 2018 hearing before the Board, the Veteran stated that he had been treated for sinusitis with antibiotics approximately 6 times over the past 12 months. He also described treatment including steroids and self-medication for symptoms occurring approximately every two weeks. Accordingly, the Board finds that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the service-connected sinusitis. 2. Entitlement to an initial rating in excess of 10 percent prior to October 26, 2015, and in excess of 30 percent thereafter, for depression disorder with anxiety is remanded. VA treatment records were associated with the claims file subsequent to the issuance of the most recent SOC in April 2016. This evidence, which includes records of relevant psychological care, has not been considered by the AOJ and there is no automatic waiver for evidence obtained by VA. 3. Entitlement to an increased rating in excess of 10 percent for lumbar spine degenerative joint disease is remanded. While the record contains a VA examination addressing the service-connected lumbar spine disability, the Board finds that the Veteran must undergo another examination in light of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). 4. Entitlement to a total disability rating due to individual unemployability is remanded. The appropriate action is to defer consideration of the TDIU claim until a decision is reached on the claims of entitlement to increased ratings for sinusitis, depressive disorder with anxiety, and a lumbar spine disability. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sinusitis. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s sinusitis under the rating criteria. i. The examiner is requested to address the Veteran’s report of treatment for sinusitis with antibiotics approximately 6 times in the 12 months prior to May 2018. ii. The examiner should state whether the Veteran has incapacitating episodes of sinusitis that require prolonged antibiotic treatment (4-6 weeks or longer), and if so, the frequency of such episodes. (b.) The examiner should identify any symptoms and functional impairments due to sinusitis alone and discuss the effect of the disability on any occupational functioning and activities of daily living. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner should discuss whether the Veteran’s lumbar spine disability has resulted in doctor-prescribed bedrest; if so, the examiner should address the frequency and duration of such bedrest. (c.) 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 lumbar spine disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. (d.) Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 3. Reconsider all the claims to include evidence associated with the file since the issuance of the most recent SOC in April 2016, including the October 2018 private psychological evaluation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.