Citation Nr: 21066005 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-12 700 DATE: October 28, 2021 ORDER New and material evidence has been submitted to reopen a claim for residuals of thoracolumbar strain; to this extent, the appeal is granted. Service connection for residuals of thoracolumbar strain is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. REMANDED A rating higher than 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The June 2014 rating decision denying entitlement to service connection for a low back condition was not appealed. 2. Evidence received since the June 2014 rating decision is not redundant or cumulative evidence previously considered and it relates to unestablished facts necessary to substantiate the claims for service connection for thoracolumbar strain. 3. The Veteran's thoracolumbar strain had onset during service, and a nexus through continuity of symptomatology since service is established. 4. In the October 2021 hearing before the undersigned Veterans' Law Judge, the Veteran requested to withdraw from appellate status the claim for TDIU. CONCLUSIONS OF LAW 1. New and material evidence has been received since the issuance of the June 2014 rating decision, thus the criteria for reopening the claim for service connection for thoracolumbar strain disabilities are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for residuals of thoracolumbar strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for dismissal of entitlement to TDIU 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 service from November 1990 to May 1991, including service during Operation Desert Shield/Storm in Southwest Asia, as well as other periods of active service. The Veteran presented sworn testimony before the undersigned Veterans' Law Judge in the October 2021 Board hearing. 1. New and material evidence has been submitted to reopen a claim for residuals of thoracolumbar strain. The RO initially denied the claims for entitlement to service connection a back disability in an unappealed June 2014 rating decision. Thereafter, in April 2018, the Veteran filed claims to reopen the previously denied claims for service connection, which were denied in the October 2018 rating decision currently on appeal. The Board finds that new and material evidence has been submitted for the previously denied claim of entitlement to service connection for a thoracolumbar strain disability, and the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). See October 2021 Board Hearing Transcript; see also Statement from B.A. dated February 2019; June 1992 and February 1994 VA Medical Treatment Records. 2. Service connection for residuals of thoracolumbar strain. The Veteran states that his diagnosed lumbar degenerative disc disease status post L4-5 lumbar laminotomy and foraminotomy disability (characterized as thoracolumbar strain) began during service and has been recurrent since that time. The Veteran's service treatment records are silent for complaint or treatment for a back disability. However, post service treatment records show a diagnosis of a back disability confirmed by MRI in August 2012, with reference to a ten-year history of low back problems. See August 2012 Medical Treatment Records. Significantly, a June 1992 VA Treatment record notes complaint of back pain with functional impairment that interfered with the Veteran's ability to walk and sit. Additionally, the Veteran's VA Medical records reference a February 1998 psychiatric treatment note that documents the Veteran's report that he sustained a back injury nine years prior. See October 2019 Thoracolumbar Spine Conditions VA examination. The Board finds that this reporting is credible, as it was offered for the purposes of treatment. The Veteran was afforded a VA examination of the spine in June 2014. The examiner opined that it was less likely than not that the Veteran's lumbar spine condition is related to his reported "undocumented" injury that occurred in 1990. The examiner opined that if an injury occurred in 1990, it was more likely than not soft tissue and would have resolved, however, the examiner did not provide rationale for her opinion. The Veteran subsequently explained in a March 2018 statement that he did not seek treatment for his back injury while in service because he did not want to interfere with his release from active duty, but he instead sought treatment at a civilian hospital in Pennsylvania shortly after discharge. See March 2018 Statement from Veteran. The Veteran's mother, B.A., submitted a statement recalling that when the Veteran returned from active duty service, he was in extreme pain due to a back injury he sustained in service. See Statement from B.A. dated April 2018. An October 2019 VA examiner opined that the Veteran's back condition was less likely than not related to service, stating that there is no medical nexus between injury and his later development of lumbar degenerative disc disease. However, the examiner did not discuss the lay evidence of record indicating that the Veteran's symptoms of back pain begin during service and persisted since that time. The Veteran testified at the October 2020 Board hearing that his symptoms of thoracolumbar strain began while on active duty following an injury he sustained while horse playing with another service member. The Veteran testified that the injury occurred after another Marine lifted and then dropped him to the ground on his back. The Veteran also explained that he has consistently experienced symptoms of back pain since discharge from active duty. Here, in light of the competent and credible lay evidence, the Board finds that the Veteran's low back disability became manifest while he was on active duty. Further, the evidence shows that he has been diagnosed as having this disability. As such, the Board concludes that the evidence shows that the disability became manifest while the Veteran was on active duty and thus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). 3. Withdraw of entitlement to TDIU. 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See generally Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In this case, the Veteran withdrew the issue of entitlement to TDIU at the October 2021 Board hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria; hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed without prejudice. REASONS FOR REMAND 4. A rating higher than 70 percent for posttraumatic stress disorder is remanded. During the October 2021 Board hearing, the Veteran testified that his symptoms of PTSD are more severe than currently rated. The Board observes that the Veteran has not been afforded a VA examination to evaluate his psychiatric disorder for over three years and the Veteran has indicated that his symptoms have worsened since his last VA examination. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo VA examinations to assess the current severity of his PTSD disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the current severity of his psychiatric disability. The determination of whether an in-person examination should be left to the discretion of the examiner. The examiner must identify the nature, extent and severity of the Veteran's psychiatric impairment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.