Citation Nr: 21003186 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-36 637 DATE: January 19, 2021 ORDER Entitlement to a rating in excess of 60 percent for traumatic partial pneumothorax, right lung with chronic obstructive pulmonary disease, and lower lung pleural pulmonary fibrosis, from August 18, 2015 is dismissed. REMANDED Entitlement to higher initial ratings for traumatic partial pneumothorax, right lung with chronic obstructive pulmonary disease, and lower lung pleural pulmonary fibrosis, rated 0 percent prior to December 7, 2010; rated 30 percent from December 7, 2010 to June 13, 2013; and rated 10 percent from June 14, 2013 to August 17, 2015, to include separate ratings for functional impairment due to musculoskeletal pain, is remanded. FINDING OF FACT At the September 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his attorney knowingly testified that he withdrew the appeal for entitlement to a rating in excess of 60 percent for traumatic partial pneumothorax, right lung with chronic obstructive pulmonary disease, and lower lung pleural pulmonary fibrosis, from August 18, 2015. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to a rating in excess of 60 percent for traumatic partial pneumothorax, right lung with chronic obstructive pulmonary disease, and lower lung pleural pulmonary fibrosis, from August 18, 2015, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to March 1970. He served honorably in the U.S. Army, including service in the Republic of Vietnam during the Vietnam era. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in September 2018. A transcript of the hearing is of record. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant and his attorney, at the September 2018 Board hearing, indicated that it was his intent to withdraw the appeal for entitlement to a rating in excess of 60 percent for traumatic partial pneumothorax, right lung with chronic obstructive pulmonary disease, and lower lung pleural pulmonary fibrosis, from August 18, 2015. The Board finds that the Veteran's withdrawal was explicit, unambiguous and done with a full understanding of the consequences of such action. During the hearing, the Veteran's private attorney testified that the Veteran desired to dismiss the issue of a higher rating for traumatic partial pneumothorax, right lung, for this period. Given these circumstances, and particularly because the Veteran's withdrawal was done after discussion with, and with the consent of, his licensed attorney representative, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. Acree v. O'Rourke, No. 2017-1749, 2018 Fed. Cir. (June 4, 2018).Thus, there remain no allegations of errors of fact or law for appellate consideration on that stage of the appeal. Accordingly, the Board does not have jurisdiction to review it. REASONS FOR REMAND Entitlement to an increased rating for traumatic partial pneumothorax, right lung with chronic obstructive pulmonary disease, and lower lung pleural pulmonary fibrosis for the period prior to August 18, 2015 is remanded. A remand is necessary for a retrospective opinion. In a February 2011 letter, the Veteran’s treatment provider noted that, with respect to his respiratory disability, the Veteran complained most of persistent right upper quadrant pain. The provider stated that the Veteran was offered a referral to a cardiothoracic surgeon to explore the possibility of thoracotomy and decortication but noted that it was doubtful that such an invasive procedure would offer anything but more pain. In a May 2015 DRO hearing, the Veteran testified that breathing, arm, shoulder, and chest movement caused pain to his right side. He testified that he did not use his right arm because it hurt the right side of his body too much: he steered his car with his left arm, reached for things with his left arm, and lifted and carried things with his left arm. He estimated that holding his arm in front to type on a computer would cause pain. In an August 2015 VA examination report, the examiner stated that throughout his course, the Veteran has had two problems: decreased pulmonary function and pleuritic pain which inhibits rapid motion of the thorax and shoulder girdle. The examiner noted that pain with movement is a problem for pleuritic pain of the nature of the Veteran’s disability and that it affects movements involving rotating the thorax and elevating the shoulder girdle with arm movement. The examiner stated that pain restricts motion of the shoulder girdle limiting lift, push, and pull at or above shoulder level and that it also affected general pushing and pulling which require pectoral muscles and are affected by pleuritic pain. The examiner stated that these do not fall within the parameters of the other templates. While the examiner stated that the symptoms do not fall within the parameters of the other templates, the examiner also stated that the pleuritic pain affected rotation of the thorax and elevation of the arm, which could affect the Veteran’s range of motion. In this regard, it is noted that, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately unless the conditions constitute the same disability or the same manifestation. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. The appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. As the record suggests the Veteran had musculoskeletal limitation of function separate and distinct from the pulmonary dysfunction, evaluation is warranted to determine whether a separate compensable disability rating is warranted for such symptomatology. The matter is REMANDED for the following action: 1. Please refer the claim to an appropriate clinician for a retrospective opinion as to the severity of the Veteran’s lung disability with respect to pain and the functional impairment caused by the pain, to include any effects on range of motion, for the period from February 19, 2004 to August 17, 2015. The Veteran’s claims-file must be made available to and reviewed by the clinician. (a). The clinician is requested to identify any functional impairment involving thorax and right upper extremity due to pain from the service-connected residuals of right lung traumatic partial pneumothorax for the period from February 19, 2004 to August 17, 2015. (b) The clinician is requested to specifically estimate in terms of range of motion loss any limitation of the thorax and the right upper extremity due to the pleural pain from February 19, 2004 to August 17, 2015. The clinician is requested to address the Veteran’s May 2015 testimony (during the period in question) that as a result of his pneumothorax residuals, breathing, arm, shoulder, and chest movement caused pain to his right side. Specifically, he testified that he did not use his right arm because it hurt the right side of his body too much: he steered his car with his left arm, reached for things with his left arm, and lifted and carried things with his left arm. He estimated that holding his arm in front to type on a computer would cause pain. The August 2015 VA examiner stated that the pleuritic pain affected rotation of the thorax and elevation of the arm, which could affect the Veteran’s range of motion. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an   explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.