Citation Nr: 21008767 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-47 032 DATE: February 18, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED), to include as due to service-connected lumbar disability, is dismissed. Entitlement to service connection for a disorder resulting in urinary frequency, to include as due to service-connected lumbar disability, is dismissed. REMANDED Entitlement to a rating in excess of 20 percent for chronic lumbar strain with progression to intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 10 percent right lower extremity radiculopathy (sciatic nerve) is remanded. FINDINGS OF FACT 1. During the January 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claim of entitlement to service connection for erectile dysfunction. 2. During the January 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claim of entitlement to service connection for urinary frequency, to include as due to his lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for erectile dysfunction (ED), to include as due to service-connected lumbar disability, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2014); 38 C.F.R. § 20.204 (2020). 2. The criteria for withdrawal of the appeal for entitlement to service connection for a disorder resulting in urinary frequency, to include as due to service-connected lumbar disability, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from January 1986 to July 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a personal hearing in January 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran has not submitted a formal claim for TDIU, and the record, including his recent hearing, indicated that the Veteran is employed in the healthcare field. The Veteran and his attorney have not alleged that his employment is marginal. As such, the Board finds that a claim of entitlement to TDIU has not yet been formally or reasonably raised by the record. Service Connection 1. Entitlement to service connection for erectile dysfunction (ED), to include as due to service-connected lumbar disability, is dismissed. 2. Entitlement to service connection for a disorder resulting in urinary frequency, to include as due to service-connected lumbar disability, is dismissed. 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. 38 C.F.R. § 20.204. In the present case, during the Veteran’s January 2021 hearing, he informed the Board that he wished to withdraw his appeals of entitlement to service connection for erectile dysfunction and urinary frequency. Hence, there remain no allegations of errors of fact or law concerning these issues for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. The withdrawal is permissible under the Board’s rules of practice. See 38 C.F.R. § 20.204. Given the Veteran’s clear intent to withdraw his appeal, further action by the Board in this matter would not be appropriate. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for chronic lumbar strain with progression to intervertebral disc syndrome (IVDS) is remanded. 2. Entitlement to a rating in excess of 10 percent right lower extremity radiculopathy (sciatic nerve) is remanded. The Veteran was last afforded a VA examination which addressed the current severity of his lumbar spine and right lower extremity radiculopathy in May 2017. The May 2017 examiner marked that the Veteran did not suffer from flare-ups associated with his lumbar spine disability. However, during his Board hearing, the Veteran described ongoing flare-ups. The May 2017 examiner did not provide estimates of loss of range of motion on repeated use over time. The May 2017 examiner also selected that the Veteran did not have IVDS; however, the June 2016 VA examiner found that the Veteran did have IVDS. Lastly, the Veteran’s forward flexion decreased from 60 degrees to 40 degrees between 2016 and 2017 and the Veteran has described ongoing symptoms that he believes warrant an increased rating. Given the difference in the 2016 and 2017 examinations, and that neither examination provided estimates of additional loss of motion during a flare up or after repeated use over time, the Board will remand for an updated examination. The examination will additionally address the Veteran’s right lower extremity radiculopathy. He is currently in receipt of a 10 percent rating for right lower extremity radiculopathy (sciatic nerve involvement) and a separate 10 percent rating for right lower extremity radiculopathy (femoral nerve involvement). The matters are REMANDED for the following action: 1. Ongoing VA treatment records should be added to the electronic record. 2. Schedule the Veteran for an updated VA examination to address the current severity of his lumbar spine disability and right lower extremity radiculopathy. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. (Continued on the next page)   A complete supporting explanation must accompany all opinions expressed. 3. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.