Citation Nr: 20037566 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-21 552 DATE: June 2, 2020 ORDER The appeal seeking an initial rating in excess of 20 percent for a service-connected right shoulder disability has been withdrawn. REMANDED Entitlement to an initial rating in excess of 10 percent for a service-connected cervical strain is remanded. Entitlement to service connection for a bilateral hand disability, to include arthritis, is remanded. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s May 2020 withdrawal of the appeal seeking an initial rating in excess of 20 percent for a right shoulder disability was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. CONCLUSION OF LAW The criteria for withdrawal of the appeal seeking an initial rating in excess of 20 percent for a right shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2006 to May 2009. In May 2020, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). The Board notes that the Veteran was awarded a temporary total evaluation for convalescence related to his service-connected right shoulder disability, from February 2, 2017 to June 1, 2017 and from June 10, 2019 to October 1, 2019. As the Veteran was in receipt of the maximum evaluation for those time periods, they will not be addressed herein. Withdrawn Claim The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. An appellant, or his or her authorized representative, may withdraw an appeal. 38 C.F.R. § 20.205. Appeal withdrawals should be filed with the Board. Id. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal. 38 U.S.C. §§ 7104, 7105(d). With respect to withdrawal of claims generally, the Board notes that “withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (citing Hanson v. Brown, 9 Vet. App. 29, 32 (1996)). The Board must also address whether an oral withdrawal is with a full understanding of the consequences and “[t]he need to ensure that a veteran understands the consequences of claim withdrawal is particularly acute when, as here, he suffers from psychiatric illness....” Acree v. O’Rourke, 891 F.3d 1009, 1013 (Fed. Cir. 2018). During the May 2020 videoconference hearing, the Veteran withdrew from appellate consideration the appeal seeking an initial rating in excess of 20 percent for a right shoulder disability. The undersigned VLJ confirmed with the Veteran that he understood that by withdrawing the issue, he would have to file a new claim in order to seek an increased rating in the future, and if awarded, any effective date would be assigned from the date of the new claim, as VA would take no further action on the current claim. The undersigned VLJ further confirmed with the Veteran’s attorney that she had spoken with the Veteran prior to the hearing and that it was their desire to dismiss the issue. The Board finds that the withdrawal of the appeal seeking an initial rating in excess of 20 percent for a right shoulder condition was explicit, unambiguous, and done with a full understanding of the consequences of such action. There is no indication, in the hearing transcript or elsewhere in the record, that the Veteran was unaware of the consequences of the withdrawal. Although the Veteran is diagnosed with PTSD, his psychiatric illness has not been shown to prevent his understanding of the withdrawals. In this regard, the record on appeal has consistently shown that the Veteran accurately and reliably discusses his health problems and conveys coherent arguments. This includes at the Board hearing. As outlined above, it is not shown that the Veteran was unaware of the consequences of his withdrawal. Moreover, the withdrawal was discussed with his attorney prior to the hearing and raised at the hearing by their request. For these reasons, the Board finds that the Veteran’s withdrawal of his appeal seeking an initial rating in excess of 20 percent for a right shoulder condition was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. Given the Veteran’s clear intent to withdraw his appeal seeking an initial rating in excess of 20 percent for a right shoulder condition, further action by the Board on this issue would not be appropriate and it is dismissed. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a service-connected cervical strain. The Veteran was provided a VA examination in September 2017 VA examination during which the VA examiner noted that the examination was neither medically consistent or inconsistent with Veteran’s reporting of functional loss with repeated use over time or flare-ups, to include pain, weakness, fatigability, incoordination, or range of motion. The VA examiner claimed that there was no conceptual or empirical basis of making such determinations without directly observing function under these conditions. During the May 2020 Board hearing, the Veteran reported daily symptoms including pain, stiffness, inability to rotate his neck, occasional headaches, and occasional sleep disturbance. He further reported flare-ups that occur at least 4-5 times a week, if not every day, that would last a few hours to half the day, and that the flare-ups were brought on by excessive movement. The Veteran reported that sometimes his neck would stiffen and spasm while driving and looking around. He reported that he sought treatment from a chiropractor, but it did not help. He reported that he self-treated with over the counter medications, as he was avoiding prescription pain medication. The Board finds that the September 2017 VA examination is insufficient for rating purposes because it does not provide the required information regarding functional limitations caused after repeated use over time or during flare-ups. The Board emphasizes that, although a VA examination may not be conducted during a flare-up and/or after repeated use over time, the holding of the United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017) provides that VA examiners should elicit information from the claimant regarding the condition of the relevant joint during such circumstances. Id. at 34. The VA examiner must then estimate the Veteran’s “functional loss based on all the evidence of record, including the Veteran’s lay information, or explain why he or she could not do so.” Id. at 33. In this case, the VA examiner did not attempt to elicit relevant information as to the Veteran’s limitations after repeated use over time and the examiner did not offer an opinion estimating the extent of the Veteran’s functional impairment after repeated use over time. Moreover, while the examiner explained that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions, it is not apparent why the examiner could not estimate additional functional loss or additional loss of range of motion based on the Veteran’s statements describing his flare-ups, or why the available information in the Veteran’s claims folder was not sufficient to permit such an estimate. Accordingly, remand is warranted for a new VA examination consistent with the directives herein. 2. Entitlement to service connection for a bilateral hand disability, to include arthritis. The Veteran’s claim for service connection for a bilateral hand disability has been developed primarily based on his contention that he has arthritis in the bilateral hands. See January 2017 VA Form 21-4138, Statement in Support of Claim. However, during the May 2020 Board hearing, the Veteran asserted that he believed the symptoms in his hands were coming from his neck because he could feel the nerve problem running from his neck, to his arms, to his hands. He reported that the pain occurred during neck flare-ups (see above) but could also occur outside of the flare-up periods. The Veteran reported the he had not sought treatment for radiculopathy, but that he reported the symptoms to his physicians, and they had conceded that a radiculopathy diagnosis was possible. In light of the foregoing, the Board finds that a VA examination is warranted in order to determine whether the Veteran’s hand condition is radiculopathy related to his service-connected cervical strain. 3. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD. During the May 2020 Board hearing, the Veteran reported that his primary PTSD symptoms consisted of self-isolation and anxiety and that he specifically looked for employment where he could be by himself, and that crowds, to include places like church, made him feel hypervigilant. He reported that he occasionally felt the need to take a moment away from the family, or people generally. He further reported difficulty focusing, panic attacks, and sleep impairment. The Veteran also reported that he felt the 2017 VA examination was an accurate portrayal of his PTSD symptoms, but he did feel like some symptoms had worsened since that time such as with his isolation and anxiety. In light of the Veteran’s testimony, the Board finds that remand for a VA examination to determine the current nature and severity of his service-connected PTSD is warranted. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected cervical strain. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to describe fully the current severity of the Veteran’s disorder. In addition, the examiner should provide the following: a) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and lack of coordination present. b) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. c) Range of motion testing must include testing in active motion and passive motion, if possible. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible. If such are not applicable, the examiner should state such along with an explanation. d) The examiner should also comment on the functional impairment caused by the Veteran’s service-connected cervical strain. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hand condition, to include radiculopathy related to his service-connected cervical strain. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. The VA examiner should opine as to: a) Whether the Veteran has a current diagnosis of radiculopathy of the bilateral upper extremities. b) If so, whether the current diagnosis of radiculopathy of the bilateral upper extremities proximately caused by or aggravated beyond its natural progression by the Veteran’s service-connected cervical strain. (Continued on the next page)   3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s PTSD. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, Associate 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.