Citation Nr: 21002409 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 07-39 633 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to December 5, 2011 is dismissed. REMANDED Entitlement to service connection for spinal and left hip muscle damage is remanded. Entitlement to a compensable disability rating for left hip trochanter pain syndrome prior to December 5, 2011 and more than 10 percent thereafter is remanded. Entitlement to a disability rating more than 20 percent for cervical spine degenerative joint and disease with severe myofascial pain is remanded. Entitlement to a disability rating more than 10 percent prior to December 5, 2011 for lumbar spine degenerative joint disease and degenerative disc disease with subjective pain in lower extremities and more than 20 percent thereafter is remanded. FINDING OF FACT During the April 2020 Board hearing, the Veteran withdrew his appeal concerning the issue of entitlement to TDIU prior to December 5, 2011. The decision was informed and voluntary. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issue of entitlement to TDIU prior to December 5, 2011 have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to December 2006. These claims come before the Board of Veterans’ Appeals (Board) on appeal of a March 2007 rating decision. The Veteran testified in support of these claims during a videoconference hearing held before Veterans Law Judge (VLJ) Parakkal in June 2012. Thereafter, VA was unable to produce a transcript of the hearing so VA offered the Veteran another opportunity to testify at a hearing. The Veteran was subsequently provided a hearing before VLJ Schwartz concerning all issues currently on appeal in April 2020. A transcript of that hearing has been associated with the claims folder. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is necessary for final adjudication of the claims. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (2012). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a “claimant’s appeal is assigned to a Board panel in a piecemeal fashion,” the Court held in Arneson that the “claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case.” Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather “only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case.” Id. In July 2020, the Veteran was afforded an opportunity to testify at a third hearing. However, the Veteran did not respond to this letter indicating that he requested a third hearing. Therefore, the Board will adjudicate the matter at hand. The Board remanded the claims on appeal in August 2015 and July 2013. The Veteran’s claims folder has returned to the Board for further appellate consideration. With regard to the claims of service connection for spinal and left hip muscle damage and higher evaluation for service-connected left hip trochanter pain syndrome, the Board notes that the Veteran’s service-connected left hip disability claim was previously considered as left hip gluteus medius strain. However, as noted in the previous remand, the Veteran claimed spinal and left hip muscle damage associated with the service-connected left hip disability, and the agency of original jurisdiction (AOJ) thereafter adjudicated the Veteran’s claims in the most recent supplemental statement of the case (SSOC) dated April 2018 as service connection for spinal and left hip muscle damage and higher evaluation for left hip trochanter pain syndrome. The Board has accordingly addressed the issues above as such. In its prior Remand, the Board referred to the AOJ a raised claim for special monthly compensation (SMC) based on the loss of use of Muscle Group XVII, to include loss of use of both buttocks. Since then, the AOJ has not acted in response. Accordingly, with greater urgency, the Board again refers this raised claim to the AOJ for appropriate action, to include adjudication. Withdrawn Issue An appeal may be withdrawn in writing 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 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the April 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to TDIU. The undersigned clearly identified the issue on appeal and that the claim was not on appeal and withdrawn. Moreover, the Veteran affirmed that he was requesting a withdrawal as to this appeal. See the April 2020 Board hearing transcript, page 2. The Veteran’s full understanding of the consequences are shown based on his affirmation that the claim was withdrawn and no longer on appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, the Board finds there remains no allegation of errors of fact or law for appellate consideration concerning this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. REASONS FOR REMAND Service connection for spinal and left hip muscle damage and higher evaluations for cervical spine degenerative joint disease and degenerative disc disease, lumbar spine degenerative joint disease and degenerative disc disease, and left hip trochanter pain syndrome The Board notes that the Veteran was most recently provided VA examinations for his service-connected cervical spine disability, lumbar spine disability, and left hip disability in April 2016. Pertinently, during the above-referenced April 2020 Board hearing, he reported an increase in symptomatology associated with these disabilities which included decreased range of motion in particular when having a spasm, requiring a service dog to assist him in activities of daily living, increased difficulty holding on to objects, and having to crawl on the floor at times due to difficulty walking. See the April 2020 Board hearing transcript, pgs. 3-19. In light of the foregoing, the Board finds that the Veteran should be provided VA examinations on remand to determine the current severity of his service-connected cervical spine, lumbar spine, and left hip disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board also notes that the claim of entitlement to service connection for spinal and left hip muscle damage is inextricably intertwined with the claim of entitlement to an increased rating for left hip trochanter pain syndrome as examination of the Veteran’s left hip will include examination of his claimed spinal and left hip muscle damage. In other words, development of the left hip trochanter pain syndrome may impact his spinal and left hip muscle damage claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to assess the orthopedic manifestations of the Veteran’s service-connected cervical spine degenerative joint disease and degenerative disc disease, lumbar spine degenerative joint disease and degenerative disc disease, and left hip trochanter pain syndrome. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the neck, lumbar spine, and left and right hips. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.   2. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.