Citation Nr: 1827167	
Decision Date: 05/03/18    Archive Date: 05/14/18

DOCKET NO.  16-22 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUES

1. Entitlement to an earlier effective date for service connection for thoracic spine disability with degenerative changes.

2. Entitlement to an initial rating in excess of 10 percent disabling prior to October 13, 2015, and in excess of 20 percent disabling thereafter, for thoracic spine disability with degenerative changes. 

3. Entitlement to a total disability based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Laura Pflugfelder, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

R.A. Elliott II, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1989 to February 1993, and June 1996 to November 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2015 and October 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana.

In February 2018, the Veteran testified during a videoconference hearing before the Veterans Law Judge below.  A transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of thoracic spine disability with degenerative changes and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In his February 2018 Board hearing, the Veteran withdrew his appeal for an entitlement to an earlier effective date for service connection for thoracic spine disability with degenerative changes.

CONCLUSION OF LAW

The criteria for withdrawal of the entitlement to an earlier effective date for service connection for thoracic spine disability with degenerative changes appeal have been met.  See 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed.  See 38 U.S.C. § 7105.  An appellant or an authorized representative may withdraw any or all issues involved in an appeal at any time before the Board promulgates a decision.  See 38 C.F.R. § 20.204.  In his February 2018 Board hearing, when asked "It's my understanding, [Veteran], that you wish to dismiss [effective date issue of earlier then March 26, 2010, for the grant of service connection for the t-spine]", the Veteran stated "Yes."  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed.


ORDER

The criteria for withdrawal of the thoracic spine disability with degenerative changes appeal have been met.  See 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REMAND

A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

With regard to the Veteran's thoracic spine disability with degenerative changes claim, in his February 2018 Board hearing, the Veteran testified that he experienced flare-ups that were not noted during his October 2015 exam and that he continues to have flare-ups to date.  Further, he noted that mentioned flare-ups during his October 2015 examination, but these were not reflected in the examiner's findings.  As the evidence of record indicates the Veteran may be suffering from worsening symptoms of thoracic spine disability with degenerative changes, to include flare-ups, the Veteran should be afforded a VA examination to assess the severity of his thoracic spine disability with degenerative changes.  Snuffer v. Gober, 10 Vet. App. 400 (1997).

Given that the increased rating and entitlement to a TDIU are intertwined, the TDIU claim must be remanded as well.  See Harris v. Derwinski, 1 Vet. App. 180 (1991)

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain all outstanding VA treatment records and associate them with the Veteran's claims file.

2. Then, schedule the Veteran for a VA back examination to determine the current severity of his service-connected thoracic back disability

The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination.  A detailed history of relevant symptoms should be obtained from the Veteran.  All indicated studies should be performed.  A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.  The VA examiner should provide the following:

The VA examiner should report the extent of the back disability symptoms in accordance with VA rating criteria.

Range of motion testing, in degrees, should be performed.  In reporting the results of range of motion testing, the VA examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain.

The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the VA examiner.  If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss.

The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups.  The VA examiner 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 the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion.  In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. 

3. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO.

4. Thereafter, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs