Citation Nr: 21001411 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-28 142A DATE: January 8, 2021 ORDER The claim of entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) has been withdrawn. REMANDED Entitlement to higher disability ratings for degenerative arthritis of the spine with intervertebral disc syndrome, currently rated as 20 percent prior to March 11, 2020, and 30 percent since, is remanded. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to a disability rating in excess of 80 percent for keloid scar of the posterior neck is remanded. FINDING OF FACT On November 9, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the TDIU appeal is requested. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to a TDIU by the Veteran’s authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from September 1986 to October 1994, with additional service in the United States Army Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2012, March 2019, and August 2020 rating decisions. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2017. A transcript of that hearing has been associated with the claims file. These matters were previously before the Board in February 2018 and October 2019 when they were remanded for further development. In these remands, the Board asked the AOJ to consider the Veteran’s cervical spine scar in the development. Accordingly, the AOJ provided the Veteran with a scar examination in March 2020, and then added the issue of entitlement to an increased rating for a keloid scar of the posterior neck to the August 2020 Supplemental Statement of the Case. The keloid scar issue is part and parcel and the degenerative arthritis of the spine issue that is currently on appeal, and thus the Board finds that the keloid scar issue is now also on appeal. 1. Entitlement to a TDIU. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, withdrew the TDIU appeal in a November 9, 2020, statement. Hence, there remain no allegations of errors of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the TDIU appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to higher disability ratings for degenerative arthritis of the spine with intervertebral disc syndrome, currently rated as 20 percent prior to March 11, 2020, and 30 percent since, is remanded. Unfortunately, there has not been substantial compliance with the Board’s October 2019 remand directives regarding the degenerative arthritis of the spine issue. Upon remand, the Veteran was afforded a VA examination in March 2020. The VA examiner found that the Veteran exhibited pain with all ranges of motion of the cervical spine. However, the examiner did not state at what degree of range of motion such pain begins. This was specifically requested by the Board in its October 2019 remand. Additionally, the examiner found that pain, weakness, fatigability, and incoordination did not significantly limit the Veteran’s functional ability with flare-ups. However, in forming this opinion, the examiner did not address the Veteran’s lay statements regarding his symptoms during a flare-up, to include difficulty moving his neck to look up or side to side during flare-ups. Additionally, the examiner did not offer range of motion estimates for any additional functional loss during a flare-up, as was specifically requested by the Board in its October 2019 remand. Another remand is required for an adequate VA examination to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. 3. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. 4. Entitlement to a disability rating in excess of 80 percent for keloid scar of the posterior neck is remanded. Finally, because a cervical spine examination of the degenerative arthritis of the spine issue upon remand will contain relevant information pertaining to the radiculopathy of the bilateral upper extremities and keloid scar of the posterior neck issues, the issues are inextricably intertwined. A remand of the radiculopathy and keloid scar claims is required. 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 his service-connected degenerative arthritis of the spine with intervertebral disc syndrome. 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. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins. 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). In so doing, 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 and with repetitive use. If it is not possible to provide a specific measurement based on direct observation, the examiner must provide an estimate of the additional impairment due to flare-ups and due to repetitive use based on the other evidence of record and the Veteran’s statements. If it is not possible to provide an estimate 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). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left upper extremity, entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity, and   3. entitlement to a disability rating in excess of 80 percent for keloid scar of the posterior neck. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.