Citation Nr: 21008939 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-35 033 DATE: February 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for left elbow epicondylitis is dismissed. Entitlement to a rating in excess of 10 percent for impairment of left forearm as due to left elbow epicondylitis is dismissed. REMANDED Entitlement to an initial rating in excess of 10 percent prior to July 20, 2016, and in excess of 20 percent from that date is remanded. FINDING OF FACT In a May 2019 Board hearing, the Veteran testified that he wished to withdraw his increased rating claims for left elbow epicondylitis and impairment of left forearm as due to left elbow epicondylitis; the Veteran’s request to withdraw was made with a full understanding of the consequences of such a withdrawal CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for left elbow epicondylitis by the appellant have been met. 38 U.S.C. § § 7105(b)(2), (d)(5); 38 C.F.R. § § 20.204. 2. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for impairment of forearm as due to left elbow epicondylitis by the appellant 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 from January 1986 to July 1988, from December 1990 to July 1991, and from January 2003 to September 2004. In May 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was previously before the Board in October 2019, at which time it dismissed the issues of entitlement to rating in excess of 10 percent for left elbow epicondylitis and in excess of 10 percent for left forearm impairment, and denied the issues of entitlement to a rating in excess of 10 percent prior to July 20, 2016, and in excess of 20 percent from that date for low back strain. The Veteran appealed those decisions to the Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Partial Remand (JMPR), reversing the Board’s prior decisions and remanding those claims for further development.  Specifically, the Court noted that the increased rating claims for the Veteran’s left elbow and left forearm disabilities were impermissibly withdrawn, and that the Veteran’s denial of increased ratings for his left back disability was based on inadequate Dec 2013 and Dec 2016 examinations. The Court directed that fresh examinations that strictly comply with the Court’s dictates in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) be rendered. Withdrawal of Claims 1. A rating in excess of 10 percent for a left elbow disability, diagnosed as epicondylitis 2. A rating in excess of 10 percent for impairment of left forearm as due to left elbow epicondylitis A veteran may withdraw an appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101, 20.202. Here, in May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge and requested that his increased rating claims for his service-connected left elbow epicondylitis, and impairment of the left forearm, be withdrawn. The Board understands that its prior finding was vacated in order to perform a more thorough analysis as to whether the withdrawal was explicit, unambiguous and “done with a full understanding of the consequences” on the Veteran’s behalf. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), citing DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In this regard the Board finds that the Veteran’s request to withdraw these claims was made with a full understanding of the consequences of the withdrawal. Specifically, while the standard set forth in Acree and DeLisio is well established, neither case established, nor suggested, what line of questioning at a hearing would have been adequate enough to meet the Acree standard. Indeed, in Acree there were no questions asked of the veteran at all. Here, in contrast, the undersigned informed the Veteran that the appeal would be effectively terminated, and that there could no longer be any entitlement to benefits arising from that appeal. Both the Veteran and his representative on that occasion indicated their understanding that this was understood. While the Veteran’s attorney argued before the Court that not enough questions were asked or insufficient information was provided, it is the Board, in its role as finder of fact, that is able to make a determination in that moment that the Veteran understood what was occurring. As an additional matter, although the Federal Circuit made clear in Acree that a withdrawal is not by definition “knowing” merely because it was made by an accredited representative, a veteran’s representative at a hearing is certainly not an uninvolved bystander. Rather, in order for the appellate process to function correctly, the Board may, and indeed should, rely on these excellent representatives at hearings when they make clear to the Board’s satisfaction that a request to withdraw an issue was the result of considered discussion and deliberation with the Veteran prior to the hearing. Therefore, in view of the Veteran’s expressed desire, the Board concludes that his intent was to withdraw these claims and further action regarding the claim is not appropriate. The Board no longer has jurisdiction over this claim and, as such, must dismiss the appeal as to this issue. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for low back strain is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s low back disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain measurements accounting for passive range of motion, or the effect of pain on weight-bearing. In addition, the December 2016 C&P examiation report does not not comply with the requirements set out in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner noted flare-ups, but the precise extent to which the Veteran’s flare-ups on lifting or rotating the elbow cause additional loss in range of motion was not recorded because the examiner felt that there was no way to estimate additional loss without directly observing the flareup. Moreover, the Court believes that evidence in the Veteran’s May 2019 Hearing Testimony indicates a worsening in back symptoms since his most recent C&P examination in December 2016. Accordingly, a remand is warranted to determine the current severity of the Veteran’s back disability and associated neurological symptoms. The matters are REMANDED for the following action: 1. Upload all outstanding VA treatment records not currently associated with the Veteran’s claims file. If the Veteran has obtained treatment outside of VA, he should be afforded an opportunity to add any applicable records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back strain. The examiner should provide a full description of the disability and report all signs and symptoms, including any associated neurological symptoms, necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability 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. 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). The examiner must also 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 possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 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). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia