Citation Nr: 21004362 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-07 730 DATE: January 26, 2021 ORDER Entitlement to an effective date earlier than June 08, 2012, for an increase to 10 percent for residuals of an appendectomy is withdrawn. Entitlement to a disability rating greater than 10 percent for residuals of appendectomy is withdrawn. Entitlement to a compensable rating for appendectomy scar is withdrawn. Entitlement to an effective date of July 7, 2011, for the assignment of a 40 percent rating for a lower back disability is granted. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a disability rating greater than 40 percent for a lower back disability is remanded. Entitlement to a disability rating greater than 10 percent for radiculopathy of the lower right extremity is remanded. Entitlement to a rating greater than 40 percent for radiculopathy of the lower left extremity remanded. FINDINGS OF FACT 1. At the March 2020 Board hearing, before the promulgation of a decision on the issue of entitlement to an effective date earlier than June 08, 2012, for an increase of 10 percent for residuals of an appendectomy, the Veteran withdrew this pending claim on appeal. 2. At the August 2020 Board hearing, before the promulgation of a decision on the issue of entitlement to a disability rating greater than 10 percent for residuals of an appendectomy, the Veteran withdrew this pending claim on appeal. 3. At the August 2020 Board hearing, before the promulgation of a decision on the issue of entitlement to a compensable rating for an appendectomy scar, the Veteran withdrew this pending claim on appeal. 4. The Veteran’s claim for an increased rating for a lower back disability was received June 08, 2012 and his disability increased in severity on July 7, 2011. 5. The probative evidence of record shows that the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s appealed claim for entitlement to an effective date earlier than June 08, 2012, for an increase of 10 percent for residuals of an appendectomy, have been met. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the Veteran’s appealed claim entitlement to a disability rating greater than 10 percent for residuals of appendectomy have been met. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the Veteran’s appealed claim for entitlement to a compensable rating for appendectomy scar have been met. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.204. 4. The criteria for an effective date of July 7, 2011 for the assignment of a 40 percent rating for service-connected lumbar spine disorder have been met. 38 U.S.C. §§ 5107 (b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 5. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1980 to April 1983. These matters come before the Board of Veteran’s Appeals (Board) from rating decisions of October 2012 and January 2016 by the Department of Veteran Affairs (VA), Regional Office (RO). The October 2012 rating decision increased the Veteran’s disability rating for degenerative changes, lumbar spine from 20 percent to 40 percent, effective June 08, 2012. The January 2016 rating decision granted service connection for radiculopathy of the right and lower extremity, each at 10 percent disabling, effective June 08, 2012. In an October 2018 rating decision, the RO increased the Veteran’s radiculopathy of the left lower extremity to 40 percent disabling, effective June 08, 2012. The Veteran testified at an August 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. During the Board hearing, the Veteran testified that he filed for Social Security Disability benefits and was awarded said benefits for his back and leg disabilities. The VLJ, thus, held the record open for 90 days to procure the additional medical evidence, specifically, Social Security Administration records. However, the Veteran did not provide the records in the allotted time frame. I. Dismissal of Claims A. Entitlement to an effective date earlier than June 8, 2012, for an increase to 10 percent for residuals of an appendectomy is withdrawn. B. Entitlement to a disability rating greater than 10 percent for residuals of the appendectomy is withdrawn. C. Entitlement to a compensable rating for appendectomy scar is withdrawn. The Board may dismiss any appeal which does not allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5) (2012). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. Id. Oral 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); Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). During his August 2020 hearing before the undersigned Veterans law, the Veteran withdrew his claims for entitlement to an effective date earlier than June 08, 2012, for an increase to 10 percent for residuals of an appendectomy, entitlement to a disability rating greater than 10 percent for residuals of appendectomy, and entitlement to a compensable rating for appendectomy scar. The undersigned explained that the appeals would be dismissed, and that if the Veteran wished to seek benefits for these issues in the future, he would need to file a new claim, which could impact effective dates if the benefits were to be granted. When asked, the Veteran stated that he understood the consequences of withdrawing these appeals. After the hearing, the Veteran additionally provided written notice dated August 26, 2020, of his desire to withdraw his claims for the said issues. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal of the issues. Accordingly, the issues are dismissed. II. Entitlement to an effective date of July 7, 2011, for the assignment of a 40 percent rating for a lower back disability is granted. The Veteran contends that he is entitled to an effective date earlier than June 08, 2012, for the 40 percent increased rating for his lower back disability. Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (o)(1). An exception to 38 C.F.R. § 3.400 provides that in cases involving increases for disability compensation, the effective date will be the earliest as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); Scott v. Brown, 7 Vet. App. 184, 189 (1994). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran’s claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). The Board therefore examines the evidence from the period from June 08, 2011 to June 07, 2012. On June 08, 2012, during a Report of General Information (RGI), the Veteran requested an increase in rating for his service-connected degenerative lumbar spine disorder. The RO in an October 2012 rating decision increased the Veteran’s rating to 40 percent, effective June 08, 2012, the date of the claim, based on the findings of the VA thoracolumbar spine conditions examination in September 2012, which reported forward flexion at 20 degrees, with objective evidence of painful motion beginning at 20 degrees. During a July 20, 2011 General Medical examination, the examiner noted that the X-ray findings of July 7, 2011 indicated “chronic low back pain now worsening.” Upon examination of the back, tenderness over the lumbosacral area was noted. The forward flexion was found to be “about 2 degrees and flexion of the posterior to only 2 degrees.” The examiner noted that the Veteran “refuse[d] to do any of the rotary maneuvers because of the pain.” A treatment note dated August 8, 2011 showed that the Veteran reported a “gradual increase in its severity” of his back disability. The clinician noted that the Veteran presented ambulating with a cane in the right hand, with the right knee flexed at all times. Further, he noted that there was a great deal of overt pain behavior, shifting, moaning, and facial grimacing. The Veteran preferred not to bear weight in sitting on the right side; however, when asked about “this,” he denied that there was no problem there. The clinician noted that it was very difficult to accomplish any sort of physical examination due to the Veteran’s reports of pain and apprehension of pain with any maneuver. The clinician noted that the Veteran refused manual muscle testing on the left lower extremity, stating it would cause back pain. Thus, no consistent and reliable range of motion nor strength testing could be accomplished on the lower extremities. The reflexes were present and symmetrical at the patellar tendons and absent bilaterally at the Achilles tendons. The plantar responses were downgoing bilaterally, and there was no ankle clonus. Palpation over the back showed increased tenseness in the superficial paraspinals on the right in the low lumbar area and bilaterally over the aponeurotic areas of the erector spine, which appeared to be quite taut. The clinician determined that “given [the Veteran’s] inability to tolerate examination, [he was unable] to determine an etiology for his further symptoms” and suggested he participate in a short trial of ultrasound and massage with physical therapy.” During a later August 2011 treatment note, the clinician noted that the Veteran reported nerve pain that shot up his back and stiff back from sitting. He also reported that he could hardly do anything, and sometimes, his back caused a foot drop and a lack of feeling in his leg. “It was progressively getting worse; sometimes it’s sore for doing little to nothing ... [It has] been painful for a long time.” The clinician noted that the Veteran was “[u]nable to tolerate lumbar AROM today, difficultly with sit>stand and sit>side lying>prone.” During his Board hearing, the Veteran and his agent argued that 2011 treatment records, specifically records generated in August 2011, document the worsening of his lower back disability. “They even discussed the range of motion… They say it was very difficult to perform any sort of physical examination because the pain was so severe the Veteran had apprehension with any sort of maneuver.” ‘ A later August 2011 treatment note, the Veteran reported a stiff back from sitting and nerve pain that shot up his back. The clinician concluded that the Veteran was “[u]nable to tolerate lumbar AROM today, difficultly with sit>stand and sit>side lying>prone.” Based on the evidence presented, the Board finds that an effective date before June 08, 2012, for 40 percent for a lower back disability is warranted because the x-rays taken on July 7, 2011, noted a worsening of the disability. This was within one year prior to the date of his claim for an increased rating. For the period from June 8, 2011 to July 6, 2011, the record does not demonstrate an increase in severity of symptoms. II. A TDIU is warranted. During the Board hearing, the Veteran testified that he left his previous job because he could not do that task. “It was too bad, the back, hips, too much twisting, and movement and lifting. It was that or I was going to be paralyzed.” Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service-connected for degenerative changes of the lumbar spine at 10 percent disabling effective July 12, 2004, 20 percent from July 30, 2008, and 40 percent from July 7, 2011 (based on this decision); radiculopathy of the left lower extremity, at 40 percent disabling, effective June 08, 2012; radiculopathy of the right lower extremity, at 10 percent disabling, effective June 08, 2012; residuals, appendectomy, at a non-compensative rate, effective November 01, 2011; and scar, second appendocele abscess at a non-compensable rate, effective June 08, 2012. On July 7, 2011, the Veteran’s schedular disability rating was 70 percent. Thus, the criteria for a TDIU was met during the period on appeal. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran testified during his Board hearing that he only has a high school education and vocational training as a mechanic in service. He took classes at car dealerships, and his only jobs/skills were in the mechanic field. He last worked in 1999, when he stopped working because the twisting, movement, lifting aggravated his back disability. In terms of working at a sit-down job, he testified that he could not sit for long periods because the pain would stop him from being able to focus/concentrate. In his April 2016 Application for Increased Compensation Based on Unemployability (Form 8940), the Veteran duplicated a March 2011 application, except he attributed his lack of gainful employment to his lumbar spine disability. He indicated that he had been under a doctor’s care within the past 12 months. He indicated the date his disability affected full-time employment, the date he last worked full-time, and the date he became too disabled to work was January 1999. He left his last employment because of his disabilities and have not tried to obtain employment since he became too disabled to work. The Veteran also reported having had a high school education and not having had any other education and training before and since he became too disabled to work. The Veteran remarked that he was unable to lift, twist “ever!” and be productive in the time allotted. Of record, also are numerous VA DBQs, each finding the Veteran’s service-connected back disability impacted his ability to work. For example, during a July 2011 General Medical examination, the examiner noted that the Veteran experienced falls, even once a week before the examination, constant and severe pain, and was not able to bend over to tie his shoes, forcing him to constantly wear slippers all the time. The examiner then concluded that the Veteran was unable to work at any form of gainful employment, desk work, or otherwise, primarily because of his back disability. Similarly, in the September 2012 VA thoracolumbar spine examination, the Veteran reported that his back pain and instability prevented his being able to work. During the February 2013 examination to continue social security benefits, the examiner determined that the Veteran would not be able to walk, stand for a full workday, lift/carry heavy objects over 5 pounds even short distances without sufficient limitations due to his antalgic gait, low back pain, generalized weakness, need for and to help him ambulate and maintain balance, a difficulty raising from a seated position, squatting, bending over, uncontrolled asthma, and range of motion in the bilateral hips knees, and shoulders. In the April 2015 VA back examination, it was noted that the Veteran last worked in 1999 last worked as a mechanic in 1999 and retired because his lifting ability was significantly hindered by his back disorder. Moreover, “his bouts of foot drop have been more frequent now as compared to the past.” Additionally, in the October 2015 VA examination, the examiner found that the Veteran’s back disability with the reduced range of motion and pain, therewith, radiculopathy of the bilateral lower extremity, and left drop foot, inhibits all jobs that mandated walking, climbing, “sitting long periods, or lifting---all physical or sedimentary jobs are both equally impaired.” Based on the competent evidence above, the Board finds that the Veteran’s service-connected back disability and the bilateral lower extremity radiculopathy stemming therefrom preclude him from securing or following any substantially gainful employment, physical or otherwise. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran’s current medical findings detailing the severity of his service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that collectively, the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating greater than 40 percent for a lower back disability is remanded. 2. Entitlement to a disability rating greater than 10 percent for radiculopathy of the lower right extremity is remanded. 3. Entitlement to a rating greater than 40 percent for radiculopathy of the lower left extremity remanded. During the Board hearing, the Veteran testified to receiving Social Security Disability benefits for his back disability. The Board notes that in February 2020, he notified the RO of said records and provided a Consent for the Release of the said documents. The Board notes that SSA records are associated with the claims file in March 2015. Said record indicate that the Veteran’s claim will be reviewed from claim will be reviewed from time to time to determine eligibility for benefits based on his disability. It appears from the record, including the February 2020 Consent for the Release of the SSA documents and the Veteran’s testimony that the SSA eligibility occurred sometime in the early quarter of 2020. VA’s duty to assist includes a duty to obtain relevant SSA records. Relevant records are defined as “those records that relate to the injury for which the veteran is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2009). Notably, “[t]here must be [a] specific reason to believe these records may give rise to pertinent information to conclude that they are relevant.” Id. at 1323. As the Veteran has indicated that the most recent SSA records may provide information regarding the severity of his back and radiculopathy, the Board finds that they are relevant to the claim. Thus, a remand is warranted for the procurement of said records. The Board also notes that the SSA records may have an effect on the issues of an increased rating for radiculopathy of the bilateral lower extremity. Therefore, the Board also remands the issues as inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Additionally, the Veteran testified that his back disability has worsened, especially during flare-ups, since his last October 2015 VA examination. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Here, the Veteran is currently rated at 40 percent disabling for his lower back disability, and a higher evaluation depends on whether there is ankylosis. Thus, a remand is warranted for a new VA examination. Accordingly, these matters are REMANDED for the following action: 1. Attempt to obtain the Veteran’s SSA records if there are any generated after the ones associated with the file previously. If the records are not available or do not exist, the AOJ should document this in the claims file, and the Veteran should be notified. 2. Provide the Veteran’s claims file to a qualified clinician to determine the current severity of the Veteran’s lower back disability. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. All pertinent symptomatology and findings must be reported in detail. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.