Citation Nr: 20021224 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-60 016 DATE: March 25, 2020 ORDER The appeal for entitlement to a compensable initial rating for residual scars, status post bilateral inguinal hernia repairs, is dismissed. The appeal for entitlement to a compensable initial rating for bilateral inguinal hernias, status post repair, is dismissed. The appeal for entitlement to a compensable initial rating for erectile dysfunction is dismissed. REMANDED Entitlement to an initial evaluation in excess of 20 percent for thoracolumbar spine degenerative joint disease is remanded. FINDINGS OF FACT 1. During the January 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in conjunction with his representative, that a withdrawal of the appeal as to the issue of entitlement to a compensable initial rating for residual scars, status post bilateral inguinal hernia repairs, is requested. 2. During the January 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in conjunction with his representative, that a withdrawal of the appeal as to the issue of entitlement to a compensable initial rating for bilateral inguinal hernias, status post repair, is requested. 3. During the January 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, in conjunction with his representative, that a withdrawal of the appeal as to the issue of entitlement to a compensable initial rating for erectile dysfunction, is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a compensable initial rating for residual scars, status post bilateral inguinal hernia repairs, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for entitlement to a compensable initial rating for bilateral inguinal hernias, status post repair, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for entitlement to a compensable initial rating for erectile dysfunction 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 Veteran had active service from March 2009 to July 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2020, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Additionally, the record reflects subsequent to the issuance of the most recent October 2016 statement of the case, issued for the appeal herein, additional evidence, including evidence developed by VA, such as updated VA treatment records, was associated with the claims file. The Veteran did not waive review of this additional evidence by the Agency of Original Jurisdiction (AOJ). In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the appellant explicitly requests consideration by the AOJ. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, specifically in December 2016, the Board does not interpret such exception as applying evidence developed by VA, as is the case here. However, as the claim of entitlement to an initial evaluation in excess of 20 percent for thoracolumbar spine degenerative joint disease is remanded below, and as the remaining claims are dismissed, there is no prejudice to the Veteran in this regard. Withdrawal of Appeal 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. Withdrawal of an appeal must be explicit, unambiguous, and with a full understanding of the consequences. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 1. Entitlement to a compensable initial rating for residual scars, status post bilateral inguinal hernia repairs 2. Entitlement to a compensable initial rating for bilateral inguinal hernias, status post repair 3. Entitlement to a compensable initial rating for erectile dysfunction During the January 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, in conjunction with his representative, explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the issues of entitlement to a compensable initial rating for residual scars, status post bilateral inguinal hernia repairs, entitlement to a compensable initial rating for bilateral inguinal hernias, status post repair, and entitlement to a compensable initial rating for erectile dysfunction. The presiding Veterans Law Judge explained to the Veteran that the consequences of such withdrawal included that no further action would be taken on these claims, and the AOJ’s denial decisions as to these issues would become final. The Veteran indicated his understanding of the consequences. Id. As such, there remain no allegations of error of fact or law for appellate consideration with regard to these issues. Accordingly, the appeal of the issues of entitlement to a compensable initial rating for residual scars, status post bilateral inguinal hernia repairs, entitlement to a compensable initial rating for bilateral inguinal hernias, status post repair, and entitlement to a compensable initial rating for erectile dysfunction, is therefore dismissed. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 20 percent for thoracolumbar spine degenerative joint disease is remanded. In January 2020 testimony, the Veteran asserted that his thoracolumbar spine degenerative joint disease has increased in severity since he was last examined by VA in October 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his thoracolumbar spine degenerative joint disease. Further, a February 2014 VA examiner found the Veteran had additional limitation of functional ability of his thoracolumbar spine during flare-ups, specifically approximately 20 degrees of flexion. However, an October 2016 VA examiner was not able to determine as to whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with flare-ups without resorting to mere speculation as he was not observed during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, neither the February 2014 or the October 2016 VA examiners provided passive range of motion measurements or pain on weight-bearing testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, an opinion warranted to address these deficiencies from July 16, 2014, the date service connection was awarded. Additionally, as the Veteran is receiving continuing VA treatment from the VA Greater Los Angeles Healthcare System, the AOJ should ensure that any and all VA treatment records, including since February 2020, are obtained and associated with the claims. The matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran’s VA treatment records from the VA Greater Los Angeles Healthcare System, including from February 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracolumbar spine degenerative joint disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a.) In so doing, the examiner must test the Veteran’s thoracolumbar spine active motion, passive motion, and pain with weight-bearing and without weight-bearing, including with pain. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) Provide findings as to range of motion on repeated use. If it is not possible to provide specific measurements on repeated use without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d.) To the extent possible, based on review of the evidence of record for the period from July 16, 2014 until the current examination, the examiner should provide retroactive findings with regard to thoracolumbar spine degenerative joint disease, as to functional loss due to such factors as pain, weakness, fatigability, and incoordination due to flare-ups as well as findings regarding passive range of motion measurements and pain on weight-bearing. If it is not possible to provide estimated measurements, or retroactive opinions without speculation, for the period from July 16, 2014 until the current examination, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Thereafter, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the   case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.