Citation Nr: 21070559 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 10-08 702 DATE: November 24, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) has been withdrawn. REMANDED Entitlement to an increased evaluation in excess of 10 percent prior to January 13, 2014 and in excess of 20 percent thereafter for lumbosacral strain with degenerative changes is remanded. Entitlement to a compensable rating, to include referral for extraschedular consideration, for bilateral hearing loss is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for TDIU pending before the Board. CONCLUSION OF LAW The criteria for withdrawal of entitlement to TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1970 to October 1974 and in the United States Navy from January 1975 to July 1992. These matters come before the Board of Veterans' Appeals on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The RO issued a rating decision in December 2015 which increased the Veteran's lumbar spine disability rating from 10 percent to 20 percent effective January 13, 2014. Because that decision constituted a partial grant of benefits sought on appeal, the issue of higher evaluations remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). These matters were previously remanded for further development in August 2016 and March 2018. In August 2016, the Board denied entitlement to an initial compensable rating for bilateral hearing loss. In April 2017, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and in June 2019, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's decision and remanded to the Board. In particular, the Court noted that the Board failed to investigate whether the Veteran's hearing loss impairments were ratable under alternative schedular means before concluding that extraschedular consideration was not warranted. The matters return to the Board for appellate consideration. In November 2021, the Veteran provided testimony before the undersigned Veterans Law Judge. 1. Entitlement to TDIU is withdrawn. 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. A substantive appeal may be withdrawn by a Veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In an April 2018 correspondence and again at the November 2021 hearing, the Veteran formally withdrew his claim for TDIU before the Board. Thus, there remains no allegation of error of fact or law for the Board to address with respect to this issue. Accordingly, the Board does not have jurisdiction over this issue, and dismissal is warranted. REASONS FOR REMAND 1. Entitlement to an increased evaluation in excess of 10 percent prior to January 13, 2014 and in excess of 20 percent thereafter for lumbosacral strain with degenerative changes is remanded. The Veteran contends that his back condition is more severe than contemplated by the assigned evaluations. Pursuant to the March 2018 Board remand, a VA back examination was scheduled in May 2019; however, correspondence indicates that the Veteran refused the VA examination. In his November 2021 Board hearing, the Veteran reported that he could not make his scheduled VA examination because he was diagnosed with cancer and that due to physical ailments he is limited to attending examinations within close proximity up to 20 miles in distance. The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655 (b). Accordingly, affording the Veteran the benefit of the doubt, the Board is unable to presume that the Veteran was physically capable of attending his scheduled examination based on the above statements. 38 C.F.R. § 3.655 (b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo a VA examination in connection with his appeal. Therefore, the RO should schedule the Veteran for an appropriate VA examination within 20 miles of his address and should also make appropriate efforts to contact and confirm the appointment with the Veteran. Such efforts to contact the Veteran should be documented. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. 2. Entitlement to an initial compensable rating, to include referral for extraschedular consideration, for bilateral hearing loss is remanded. The Veteran contends that additional impairments resulting from his bilateral hearing loss are not contemplated by the rating criteria and that his hearing disability in conjunction with his service-connected disabilities create an exceptional or unusual disability picture, thus warranting referral for extraschedular consideration. He reports difficulty hearing others and recognizing speech, causing social and occupational limitations. Although the Board regrets the delay, additional development is warranted before an appellate decision can be rendered in this matter. The Board notes that the last VA audiological examination was in October 2015. As such, in order for the Board to make a more informed decision on the issue of whether the Veteran's hearing loss impairments are ratable under alternative schedular options and/or extraschedular basis, a new VA examination and opinion is warranted to gain a better understanding of the current circumstances surrounding the Veteran's hearing loss disability. The examination must therefore be obtained upon remand. The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain any outstanding VA and/or private treatment records, if any. All efforts to obtain these records should be documented. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected lumbar spine disability. The examination should be scheduled at an appropriate facility within 20 miles of the Veteran's home. Appropriate efforts to contact and confirm the appointment with the Veteran must be made. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough examination of the Veteran's scar. All pertinent symptomatology and findings must be reported in detail. To comply with the Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the back. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All pertinent symptomatology and findings must be reported in detail in accordance with rating back disabilities. All ranges of motion involving the Veteran's back disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's back disability could significantly limit functional ability during rest or nonmovement, movement, flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. Notably, to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of reduced range of motion during flare-ups or repetitive use over time, the examiner should provide a fully reasoned explanation. 3. Schedule the Veteran for a VA audiological examination. The examination should be scheduled at an appropriate facility within 20 miles of the Veteran's home. Appropriate efforts to contact and confirm the appointment with the Veteran must be made. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner should attempt to ascertain the Veteran's puretone thresholds at 1000, 2000, 3000, and 4000 Hz and document his word recognition score using the Maryland CNC test. If the puretone thresholds cannot be determined or if the Maryland CNC test is not appropriate for this Veteran, please explain why this is so. The examiner is asked to elicit details of the Veteran's symptoms and complications as a result of his bilateral hearing loss. All findings should be documented. The examiner is asked to comment on whether the Veteran's hearing loss disability presents any unusual circumstance(s) not previously considered or discussed in prior VA examinations. The rationale for any opinion rendered must be provided. 4. Undertake any necessary development as a result of the above actions. 5. Readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.