Citation Nr: 21062924 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-13 098 DATE: October 12, 2021 ORDER Entitlement to an effective date earlier than April 2, 2014, for the grant of a 20 percent rating for spondylosis at L5 with degenerative joint disease and intervertebral disc syndrome is dismissed. REMANDED Entitlement to a rating in excess of 10 percent prior to April 7, 2015, and in excess of 20 percent from that date for lumbar radiculopathy, right lower extremity, is remanded. Entitlement to a rating in excess of 10 percent for left ankle strain is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT On the record at a March 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal for entitlement to an effective date earlier than April 2, 2014, for the grant of a 20 percent rating for spondylosis at L5 with degenerative joint disease and intervertebral disc syndrome. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to an effective date earlier than April 2, 2014, for the grant of a 20 percent rating for spondylosis at L5 with degenerative joint disease and intervertebral disc syndrome 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 from September 1998 to July 2005. The Veteran testified as to all issues on appeal at hearings before two of the undersigned Veterans Law Judges (VLJs) in October 2018 and March 2021. Transcripts of those hearings are associated with the record. A VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 C.F.R. § 20.604. In addition, by law, appeals may be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when an appellant has had a hearing before two different VLJs covering one or more of the same issues on appeal, a third VLJ must be assigned to participate in a panel decision with respect to those issues. Accordingly, a third VLJ has been assigned to participate in a panel decision in this case. Under Arneson v. Shinseki, 24 Vet. App. 379 (2011), an appellant has the right to a hearing before all VLJs involved in a panel decision. In July 2021, the Board sent the Veteran a letter informing him of his right to have an additional hearing held before the third VLJ assigned to the panel to decide this issue. The letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he does not want a third hearing and would proceed accordingly. More than 30 days have elapse since the date of the July 2021 and the Veteran has not requested a third hearing. Therefore, the Board will proceed with appellate consideration of the case. The Veteran presented testimony at the October 2018 Board hearing as to the issue of entitlement to an increased rating for major depressive disorder with hypersomnia. The record shows that, following issuance of a statement of the case in February 2016, the Veteran submitted a timely substantive appeal as to that issue in February 2016. However, in March 2016, prior to that issue being certified to the Board, the Veteran submitted a written request to withdraw the issue. The agency of original jurisdiction then sent the Veteran a letter acknowledging the request for withdrawal and informing the Veteran that the issue had in fact been withdrawn from the appeal. Thus, the Veteran withdrew the appeal as to that issue prior to it being certified to the Board, and the Board does not have jurisdiction to consider the issue despite testimony having been received as to the issue at the October 2018 Board hearing. The Veteran raised the issue of entitlement to a TDIU at the October 2018 Board hearing as part of his appeal for higher ratings for the service-connected radiculopathy of the right lower extremity and left ankle strain. Therefore, the issue is on appeal as part of the increased rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an effective date earlier than April 2, 2014, for the grant of a 20 percent rating for spondylosis at L5 with degenerative joint disease and intervertebral disc syndrome 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. In this case, at the March 2021 Board hearing, the Veteran asked to withdraw the appeal for entitlement to an effective date earlier than April 2, 2014, for the grant of a 20 percent rating for spondylosis at L5 with degenerative joint disease and intervertebral disc syndrome. The withdrawal was explicit and unambiguous, as the Veteran specifically expressed agreement with the withdrawal of the issue as individually identified. In addition, the withdrawal was done with a full understanding of the consequences of such action. The Veteran continued an appeal of the remaining issues and presented relevant testimony as to those issues but not as to the withdrawn issues. In addition, the Veteran was represented at the hearing by his accredited representative. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Therefore, the Board finds that the Veteran has withdrawn the appeal as to that issue and that there remain no allegations of errors of fact or law for appellate consideration as to the issue. 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue, and the issue is dismissed. REASONS FOR REMAND 1. Entitlement to increased ratings for lumbar radiculopathy, right lower extremity, is remanded. The Veteran indicated at the March 2021 Board hearing that his service-connected radiculopathy of the right lower extremity had worsened since he was last examined by VA for the disability. The Veteran was afforded a VA back conditions examination in April 2021 that provides some relevant information as to the nature and severity of the service-connected radiculopathy of the right lower extremity. However, that examination is not adequate for rating purposes because it does not contain all of the information necessary to fully rate the Veteran's disability. Specifically, the examination indicates that the Veteran's service-connected lumbar spine disability involves the sciatic nerve on both the left and right sides, but does not describe the severity of that involvement. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected radiculopathy of the right lower extremity. 2. Entitlement to an increased rating for left ankle strain is remanded. The Veteran indicated at the March 2021 Board hearing that his left ankle strain has increased in severity since he was last examined by VA in July 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left ankle strain. The Veteran also indicated at the March 2021 Board hearing that he injured his left ankle in January 2021 when he fell down a set of stairs. VA treatment records obtained after the March 2021 Board hearing indicate that the Veteran initially sought care for that injury at St. Luke's hospital. A remand is required to allow VA to obtain authorization and request records from St. Luke's hospital. 3. Entitlement to a TDIU is remanded. The Veteran's education and occupational history are unclear from the record. Regarding the Veteran's occupational history, he has stated that he recently has only worked for a family landscaping business. However, his VA vocational rehabilitation and education records and VA treatment records indicate that he has also worked at a home for homeless veterans and at a nursing home. The Board finds that the issue must be remanded so that the Veteran may be informed of the factors pertinent to establishing a TDIU and to afford him an opportunity to complete a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, or otherwise provide a summary and description of his education and work history. The matters are REMANDED for the following action: 1. Provide the Veteran a letter explaining the factors pertinent to establishing entitlement to a TDIU. The letter must be enclosed with a VA Form 21-8940. 2. Ask the Veteran to complete a VA Form 21-4142 for St. Luke's hospital for his treatment in January 2021. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar radiculopathy, right lower extremity. 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. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle strain. 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 attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner must also test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.