Citation Nr: 21012005 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-33 790 DATE: March 3, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is dismissed. REMANDED Entitlement to a disability rating in excess of 20 percent for chronic lumbosacral strain is remanded. Entitlement to a disability rating in excess of 10 percent for a right hip condition is remanded. FINDING OF FACT The Board received notification in July 2020 from the Veteran of her desire to withdraw from appeal the issues of entitlement to a TDIU. CONCLUSION OF LAW The criteria for withdrawal of the appeal are met as to the claim for entitlement to a TDIU. 38 U.S.C. § 7105(b)(2) (2012); 38 C.F.R. § 20.205 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to October 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated April 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2020, the Board most recently remanded claims for entitlement to increased disability ratings for the service-connected chronic lumbosacral strain and right hip condition, and a claim for entitlement to a TDIU for further development. See Board Remand dated June 8, 2020. As discussed below, the Board dismisses the claim for entitlement to a TDIU and again remands the increased rating claims to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2019). Dismissal of Appeal Pursuant to Veteran’s Request The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(b)(2) (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205 (2019). Withdrawal may be made by the Veteran or his or her authorized representative. 38 C.F.R. § 20.205 (2019). The RO concluded in its February 2020 rating decision that the Veteran’s claim for entitlement to a TDIU is moot because she has been assigned a 100 percent combined disability rating since December 2014. See Rating Decision dated February 24, 2020 at pg. 6. As the Board emphasized in its June 2020 remand, the United States Court of Appeals for Veterans Claims (Court) held in Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) that a combined 100 percent rating would not moot the issue of TDIU if TDIU could be awarded for a single disability. The Board remand directed the RO to provide the Veteran with a TDIU application form. However, in July 2020, the Board received notification from the Veteran of her desire to withdraw the claim of entitlement to a TDIU from the instant appeal. See Veteran’s statement received July 21, 2020. The Veteran’s withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. She stated that she is satisfied with her combined 100 percent rating now in effect. Therefore, the Board finds that the withdrawal of the claim for entitlement to a TDIU is effective. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Goff v. Wilkie, No. 18-0156, 2019 U.S. App. Vet. Claims LEXIS 1269 (June 23, 2019) (unpublished decision). Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed. See Id.; see also Evans v. Shinseki, 25 Vet. App. 7, 15 (2011). REASONS FOR REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). In June 2020, the Board remanded the increased rating claims to obtain additional treatment records and an updated VA examination. Despite the Board’s clear instructions in the remand directives that the examiner specifically estimate limitation of functional ability from pain due to repeated use over time and during flare ups in “terms of reduced ROM,” the VA examiner, provided no estimate for the Veteran’s lumbar spine, and again entered the initial ROM measurements recorded in the December 2019 VA examination report for the right hip, adding narratives describing the Veteran’s physical limitations that impacted prolonged walking, standing, and sitting, running, climbing ladders and stairs, and squatting. See VA Medical Opinion dated September 14, 2020 at pg. 4. The Court has held that upon eliciting information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during, e.g., flare-ups, a VA examiner must “express an opinion on whether pain could significantly limit functional ability and the examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss” due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Here, the examiner has elicited such information from the record and the Veteran but has not provide an estimate in terms of degree of additional ROM loss consistent with the Court’s mandate in Sharp. For want of this information, which is essential in applying the diagnostic criteria to the Veteran’s lumbar spine and right hip disabilities for rating purposes, the Board remanded the claims in June 2020 and now does so again for the same reasons. Given the VA examiner’s failure to comply with the Board’s June 2020 remand directives, the claims must be remanded for an addendum examination report addressing the questions set forth below. See Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, obtain addendums from the examiner who conducted the December 2019 VA thoracolumbar spine and VA hip and thigh examinations, or if unavailable, another similarly qualified examiner. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The need for another examination(s) is left to the discretion of the medical professional offering the addendums. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *The examiner’s review of the body of this Remand is recommended to assist in avoiding deficiencies the Board has identified in previous examination reports. Spine: (a) The examiner is requested to review the following in the Back (Thoracolumbar Spine) Conditions DBQ dated 12/22/2019 (see VBMS entry with document type “C&P Exam,” receipt date 01/27/2020): Functional loss due to repeated use over time in terms of range of motion (ROM) set forth under Section 3C “Repeated use over time” reflects the same data specified in the initial ROM chart under Section 3A on page 3 of the DBQ, which cannot be correct since the examiner indicated that pain significantly limited functional ability with repeated use over time and that such limitation could be described in terms of ROM (DBQ pages 4-5 of 13). Functional loss due to flare ups in terms of ROM set forth under Section 3D “Flare ups” reflects the same data specified in the initial ROM chart under Section 3A on page 3 of the DBQ, which cannot be correct since the examiner indicated that pain significantly limited functional ability during flare ups and that such limitation could be described in terms of ROM (DBQ page 5 of 13). Then, respond to the following regarding the Veteran’s spine: (i) Estimate limitation of functional ability from pain due to repeated use over time in terms of the degree of additional ROM loss; and (ii) Estimate limitation of functional ability from pain due to flare ups in terms of the degree of additional ROM loss. Hip: (b) The examiner is requested to review the following in the Hip and Thigh Conditions DBQ dated 12/22/2019 (see VBMS entry with document type “C&P Exam,” receipt date 01/27/2020): Functional loss due to repeated use over time in terms of range of ROM set forth under Section 3C “Repeated use over time” for the right hip reflects the same data specified in the initial ROM chart under Section 3A on page 4 of the DBQ, which cannot be correct since the examiner indicated that pain significantly limited functional ability with repeated use over time and that such limitation could be described in terms of ROM (DBQ page 7 of 16). Functional loss due to flare ups in terms of ROM set forth under Section 3D “Flare ups” for the right hip reflects the same data specified in the initial ROM chart under Section 3A on page 4 of the DBQ, which cannot be correct since the examiner indicated that pain significantly limited functional ability during flare ups and that such limitation could be described in terms of ROM (DBQ page 9 of 16). Then, respond to the following regarding the Veteran’s right hip: (i) Estimate limitation of functional ability from pain due to repeated use over time in terms of the degree of additional ROM loss; and (ii) Estimate limitation of functional ability from pain due to flare ups in terms of the degree of additional ROM loss. A complete rationale must be provided for any opinions rendered. (Continued on the next page)   3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 4. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Farrell, Bradley 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.