Citation Nr: 21063169 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-11 862 DATE: October 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) has been withdrawn. Entitlement to service connection for a dysthymic disorder, claimed as sleep disturbances, has been withdrawn. REMANDED Entitlement to a rating higher than 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating higher than 10 percent for intervertebral disc syndrome, claimed as degenerative disc disease with Grade I anterolisthesis of the L5 over S1 is remanded. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. During the July 2021 virtual Board hearing, prior to the promulgation of a decision in the appeal, the Veteran provided testimony that he wished to withdraw his claim to entitlement to service connection for PTSD. 2. During the July 2021 virtual Board hearing, prior to the promulgation of a decision in the appeal, the Veteran provided testimony that he wished to withdraw his claim to entitlement to service connection for a dysthymic disorder, claimed as sleep disturbances. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for PTSD by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for entitlement to service connection for sleep disturbances by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 2002 to August 2002, May 2003 to November 2003, and from June 2007 to September 2007. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 virtual Board hearing. A copy of the transcript has been associated with the file. Withdrawal 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) 2. Entitlement to service connection for a dysthymic disorder, claimed as sleep disturbances 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran testified during his July 2021 Board hearing that he wished to withdraw his claims of service connection for PTSD and for a dysthymic disorder. He did so knowingly, and with full consideration of the consequences of his withdrawal. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. REASONS FOR REMAND 3. Entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated at 20 percent disabling, is remanded. 4. Entitlement to an increased rating for left lower extremity radiculopathy, currently evaluated at 10 percent disabling, is remanded. 5. Entitlement to an increased rating for intervertebral disc syndrome, currently evaluated at 10 percent disabling, is remanded. 6. Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran is currently service connected for degenerative disc disease (DDD) with Grade I anterolisthesis of L5 over S1, rated at 10 percent disabling, under Diagnostic Codes (DCs) 5242-5243. He is separately rated for left lower extremity radiculopathy, rated at 10 percent disabling, under DC 8520 and right lower extremity radiculopathy, rated at 20 percent disabling, under DC 8620. The Veteran testified during his July 2021 Board hearing to worsening of symptoms for his bilateral lower extremity radiculopathy and his back condition. As the Veteran indicated a worsening of both his right and left lower extremity radiculopathy, the Board takes jurisdiction of both right and left radiculopathy claims. In addition, as the Veteran raised the issue of entitlement to a TDIU, the Board takes jurisdiction of this claim as part and parcel of the Veteran's increased rating claims currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Following the July 2021 Board hearing, the Veteran was afforded a Peripheral Nerves VA examination in August 2021, however, the examiner did not discuss his flare-ups. The Veteran testified to flare-ups in his legs and feet that essentially leave him bedridden. During flare-ups, the Veteran is unable to put his own pants or socks on, requiring assistance from his wife. See Hearing Transcript, Page 5. In addition, he testified to leg numbness. Thus, it is unclear whether the most recent VA examination report is reflective of the Veteran's full lower extremity disability picture. As such, remand is warranted to afford him an additional VA examination. The Veteran was last afforded a VA back examination in August 2016. The Veteran testified to a worsening of his back symptoms, to include a June 2021 visit to the Emergency Room with complaints of back pain. In addition, he testified to undergoing 2 surgeries for his back in 2018. He endorsed flare-ups, and indicated that his back pain affects his ability to stand and walk, as his back pain radiates down his legs and feet, causing complete numbness. Additionally, he testified that his back symptoms cause significant interruptions to daily life, including requiring him to stop driving as a truck driver and requiring frequent breaks to walk around while working as a Lyft driver. As such, remand is warranted to afford him an additional VA examination. The issue of TDIU is inextricably intertwined with the issues being remanded and as such, is also being remanded. 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 bilateral lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria, including the effects of the disability on the Veteran's ability to work. In addition, 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. The examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. Specifically regarding the severity of the left lower extremity radiculopathy, the examiner should refer and reference the August 2016 VA examination that found the severity of the left radiculopathy was "mild," however found moderate constant left lower extremity pain, severe intermittent left lower extremity pain, moderate paresthesias and/or dysesthesias of the left lower extremity, and moderate numbness of the left lower extremity. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria, including the effects of the disability on the Veteran's ability to work. In doing so, the examiner must 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. In addition, 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 is asked to consider the Veteran's lay reports advanced at his July 2021 Board hearing regarding the severity of his disability, including a recent visit to the emergency room and his 2018 back surgeries. The examiner is asked to provide a detailed rationale for any conclusions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.