Citation Nr: 21077257 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-48 290A DATE: December 29, 2021 ORDER The issue of entitlement to a disability rating greater than 30 percent for bilateral plantar fasciitis has been withdrawn. REMANDED The issue of entitlement to a disability rating greater than 20 percent for lumbar back strain with spondylosis and arthritis is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, during the August 2021 Board virtual hearing, the Veteran withdrew his appeal concerning the issue of entitlement to a disability rating greater than 30 percent for bilateral plantar fasciitis. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to a disability rating greater than 30 percent for bilateral plantar fasciitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge at a Board virtual hearing in August 2021. A transcript of this proceeding has been associated with the claims file. Notably, during the August 2021 Board hearing, the Veteran waived RO consideration of evidence that had been developed subsequent to the August 2017 statement of the case. Notably, the Veteran has also perfected appeals concerning the issues of entitlement to service connection for an acquired psychiatric disability, sleep apnea, migraines, hearing loss, and a neck disability. However, as these appeals stem from different rating decisions and are awaiting the scheduling of requested hearings, they will not be addressed at that time. 1. The issue of entitlement to a disability rating greater than 30 percent for bilateral plantar fasciitis has been withdrawn. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the August 2021 Board hearing, the Veteran, through his representative, indicated that he wished to withdraw his appeal concerning the issue of entitlement to a disability rating greater than 30 percent for bilateral plantar fasciitis. Hence, there remain no allegations of errors of fact or law for appellate consideration with regarding to this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. REASONS FOR REMAND 2. The issue of entitlement to a disability rating greater than 20 percent for lumbar back strain with spondylosis and arthritis is remanded. The Veteran contends that a disability rating greater than 20 percent is warranted for his service-connected lumbar spine disability. During the course of this appeal beginning October 2014, he was afforded VA spine examinations in April 2015 and November 2020. Significantly, during these examinations, the Veteran denied experiencing flare-ups. Also, while the April 2015 and November 2020 VA examination reports show range of motion findings for the lumbar spine, the examiner found that the Veteran's range of motion was not affected on repetitive use testing. Finally, the examination reports are negative for any indications of radiculopathy. However, during the August 2021 Board hearing, the Veteran reported experiencing significant flare-ups of his lumbar spine disability. Specifically, the Veteran reported that he had experienced three significant flare-ups of his lumbar spine disability in 2021, each one lasting approximately one month and requiring him to be off from work. The Veteran also reported that he experienced loss of motion of the lumbar spine with repetitive movement. Finally, the Veteran reported that during his "last examination," he underwent nerve testing and was told that he had radiculopathy. During the August 2021 Board hearing, the Veteran's representative argued that the most recent November 2020 VA spine examination was inadequate as it does not address the Veteran's reported flare-ups, loss of motion on repetitive movement, and/or recent diagnosis of radiculopathy. Given the allegations of worsened symptomatology in the August 2021 Board hearing, the Veteran should be afforded a new VA examination on remand which addresses the current nature and severity of his service-connected lumbar spine disability. Also, given that the medical evidence of record is negative for an indication of radiculopathy along with the Veteran's allegation that he recently underwent nerve testing and was told that he had radiculopathy, the Board notes that there are likely outstanding treatment records as the most recent most recent VA medical records in the claims file are dated in November 2020 and the most recent private treatment records in the claims file are dated in September 2021. Therefore, all outstanding VA and private treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed lumbar spine disability, to include nerve testing resulting in a diagnosis of radiculopathy. After securing any necessary release, such records should be requested, to include all outstanding VA treatment records from November 2020 to the present. 2. Schedule the Veteran for a VA spine examination to determine the current severity of his service-connected lumbar spine disability. All indicated tests should be performed and all findings should be reported in detail. The examination report must include ranges of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner also should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the lumbar spine. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In particular, with respect to flare-ups, the examiner should identify any functional loss caused by flare-ups, to include the amount of range of motion loss, if any, that is present during flare-ups. If the examination is not taking place during a flare-up, the examiner should elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and estimate range of motion loss, in terms of degrees. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In doing so, the examiner should address the Veteran's August 2021 Board hearing testing concerning the following: (i) the Veteran's testimony that he had experienced three significant flare-ups of his lumbar spine disability in 2021, each one lasting approximately one month and requiring him to be off from work; (ii) the Veteran's testimony that he experiences loss of motion of the lumbar spine with repetitive movement; and (iii) the Veteran's testimony that during his "last examination," he underwent nerve testing and was told that he had radiculopathy. See VBMS, document labeled Hearing Transcript, receipt date 8/18/21, pages 3 and 6. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.