Citation Nr: 20004072 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-58 542A DATE: January 16, 2020 ORDER The appeal as to whether a reduction in rating from 60 percent to 20 percent for degenerative disc disease of the lumbar spine was proper has been withdrawn and is dismissed. REMANDED Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(m) is remanded. FINDING OF FACT At his September 2019 hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew his appeal of the propriety of a rating reduction for degenerative disc disease of the lumbar spine with a full understanding of the consequences. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to whether a reduction in rating from 60 percent to 20 percent for degenerative disc disease of the lumbar spine was proper have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to June 1993. This appeal is before the Board of Veterans’ Appeals (Board) from October 2014 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Whether a reduction in rating from 60 percent to 20 percent for degenerative disc disease of the lumbar spine was proper 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 a veteran or by his or her authorized representative. Id. Withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). At his September 2019 hearing, prior to the promulgation of a decision in the appeal, the Veteran explicitly and unambiguously withdrew the appeal as to whether a reduction in rating from 60 percent to 20 percent for degenerative disc disease of the lumbar spine was proper. The Veteran, who was advised by an accredited representative, stated that he understood that the reduction in rating for the lumbar spine disease was proper because it was offset by ratings for radiculopathy of the lower extremities. As to this issue there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. REASONS FOR REMAND Entitlement to SMC under 38 U.S.C. § 1114(m) The Veteran claims SMC based on loss of use of the lower extremities. In an August 2015 statement prior to his November 2015 claim, he requested an increase in SMC due to being wheelchair-bound. He currently receives SMC under 38 U.S.C. § 1114(l) based on a need for regular aid and attendance. SMC under 38 U.S.C. § 1114(m) is available for anatomical loss or loss of use of both legs at a level or with complications preventing natural knee action with prostheses in place. Compensation is also available under § 1114(m) for loss or loss of use of the upper extremities or blindness, but such criteria are not applicable to the Veteran’s appeal. 38 C.F.R. § 3.350(c). Evidence in the record establishes that the Veteran has been wheelchair-bound for nearly two decades. The specific criteria for SMC, however, require that the loss of use be so severe as to be the equivalent of preventing natural knee action with amputation and prostheses. The evidence of the record is not clear on this point. Remand is therefore necessary for a VA examination to determine whether the Veteran exhibits loss of use of the lower extremities. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination of his lower extremities. The claims file must be reviewed by the examiner. The examiner should offer an opinion as to whether the Veteran exhibits loss of use of both legs to the equivalent of amputation preventing natural knee action with prostheses in place. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.