Citation Nr: 21014143 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-21 905 DATE: March 11, 2021 ORDER 1. The appeal seeking a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is dismissed. REMANDED 2. Entitlement to increases in the (0 percent prior to June 8, 2016, and 20 percent from that date) ratings assigned for a thoracolumbar spine disability, is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT In a December 2020 statement, prior to the promulgation of a Board decision in the matter, the Veteran’s attorney requested withdrawal of her appeal seeking a rating in excess of 30 percent for GERD. CONCLUSION OF LAW The criteria for withdrawal of an appeal are met with respect to a claim seeking a rating in excess of 30 percent for GERD; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1984 to December 2006. This matter is before the Board of Veterans’ Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of an April 2011 rating decision. In June 2015 the case was remanded for further development. A January 2019 Board decision granted a rating of 10 percent for hypertension and a 30 percent rating for GERD, and denied the Veteran entitlement to a compensable rating for a thoracic spine disability prior to June 8, 2016, and a rating in excess of 20 percent from that date, entitlement to a compensable rating for left otosclerosis, and entitlement to a TDIU rating. He appealed that decision to the CAVC. A November 2019 CAVC Order vacated the portion of the Board’s January 2019 decision that denied a compensable rating prior to June 8, 2016, and a rating in excess of 20 percent from that date for the thoracic spine disability, a rating in excess of 30 percent for GERD from January 22, 2018, and entitlement to a TDIU rating, and remanded those claims to the Board for further development and re-adjudication consistent with terms of a November 2019 Joint Motion for Partial Remand (JMPR). [The CAVC left undisturbed the part of the Board decision that granted a 10 percent rating for hypertension and a 30 percent rating for GERD from January 22, 2018. The Veteran did not challenge the Board’s denial of a compensable rating for left otosclerosis, a rating in excess of 10 percent for hypertension, and a rating in excess of 10 percent for GERD prior to January 22, 2018. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc) (recognizing an appellant’s right to expressly abandon parts of his or her appeal). 1. The appeal seeking a rating in excess of 30 percent for GERD is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 19.55. In a December 2020 statement, the Veteran’s attorney withdrew her appeal seeking a rating in excess of 30 percent for GERD (essentially indicating that she was satisfied with the rating currently assigned for GERD). A withdrawal of an appeal is effective when received. 38 C.F.R. § 19.55. Accordingly, there remains no question of fact or law in the matter for the Board to consider, and the Board does not have jurisdiction to further consider an appeal in the matter. REASONS FOR REMAND 2., 3. Entitlement to increases in the (0 percent prior to June 8, 2016, and 20 percent from that date) ratings assigned for a thoracolumbar spine disability and entitlement to a TDIU rating, is remanded. In the November 2019 JMPR, the parties agreed that vacatur and remand was required for multiple reasons. First, the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its decision when it denied a compensable rating for the Veteran’s thoracic spine disability prior to June 8, 2016. The Board determined that prior to that date, there was no evidence of localized tenderness, spasm, guarding, abnormal gait, or abnormal spinal contour, but the parties agree that the Board failed to discuss all relevant records. Further, the Board failed to consider the applicability of Diagnostic Code (Code) 5003 (a May 2011 thoracic spine and X-ray showed lower thoracic spine degenerative joint disease (DJD)). The Board also notes that the March 2011 VA examination did not appear to include the testing necessary to comply with 38 C.F.R. § 4.40, regarding findings whether pain could significantly limit the Veteran’s functional ability during flare-ups, even though she reported constant severe back pain that was exacerbated by physical activity and stress. She also reported that during flare-ups she experienced functional impairment which was described as chronic pain, fatigue, and limited range of motion in her back and neck. And in a December 2013 statement, her spouse notes that he witnessed her complaints of extreme upper back and shoulder pain that had worsened, a September 2014 Ft Bragg Clinic treatment record notes that the Veteran reported constant pain of 7/10 that increased in severity with prolonged sitting, standing, and walking, and an April 2015 Ft. Bragg Clinic treatment record notes that she reported constant upper back pain of 7/10 that increased to 10/10 with activity. The parties also agreed that the Board erred in relying on an inadequate (June 2016) medical examination to deny a rating in excess of 20 percent for a thoracic spine disability from June 8, 2016. See Barr, 21 Vet.App. at 31. In cases involving ratings for of joint disabilities, the CAVC has held that 38 C.F.R. § 4.59 “creates a requirement that certain range of motion testing be conducted whenever possible.” Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). Therefore, a new examination (that includes a retrospective opinion regarding flare-ups) and that would be consistent with holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and DeLuca v. Brown, 8 Vet. App. 202 (1995), which discuss 38 C.F.R. § 4.40, and is consistent with Correia (i.e. tests active and passive range of motion for both weight bearing and non-weight bearing situations or provide an explanation as to why such testing was not possible or appropriate) is necessary. The Board is aware of the difficulty in providing an opinion [here, regarding severity of flare-ups] that in part requires some speculation, particularly when the Veteran is not experiencing a flare-on examination. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the degree of severity of the back disability during flare-ups is necessary. In response to the Veteran’s attorney’s assertion that the period on appeal extends back to January 1, 2007, the Board notes that VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the relevant period for consideration is from November 8, 2008 (a year prior to the November 8, 2009 claim on appeal) to the present. Finally, the parties also agreed that the Board erred in failing to address all relevant evidence when denying TDIU prior to June 8, 2016, and that the Board erred when it found the issue of entitlement to TDIU from June 8, 2016, is moot because the Veteran was in receipt of a 100 percent combined rating from that date. The Board failed to consider all potentially applicable provisions of law and regulation. Schafrath, 1 Vet.App. at 593. Specifically, in failing to adjudicate entitlement to TDIU from June 8, 2016, the Board failed to determine whether the Veteran would have been entitled to special monthly compensation (SMC) under 38 C.F.R. § 3.350(i)(1). The matter of entitlement to a TDIU rating (and possibly SMC) is inextricably intertwined with the claim for increase that is remanded, and consideration of that matter must be deferred pending resolution of the increased rating claim. The record contains VA treatment records for the disabilities on appeal only up to October 2018. As it reflects that the Veteran continues to receive ongoing treatment for her thoracolumbar spine disability, including from VA, private providers, and the Fort Bragg Clinic, records of such treatment may contain pertinent information, and outstanding records of all such treatment must be obtained and considered. VA treatment records are constructively of record. 38 C.F.R. § 3.159 (c)(2). The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment she has received for thoracolumbar spine disability, and to submit authorizations for VA to obtain updated (to the present) records of any private evaluations or treatment she received (to specifically include records from the Fort Bragg Clinic). Secure for the record complete clinical records of the evaluations and treatment from all providers identified (any not already associated with the record). If any non-VA records identified are not received pursuant to a VA request, the Veteran should be so notified and advised that ultimately it is her responsibility to ensure that private medical records are received. Specifically, secure complete updated records of all VA evaluations and treatment the Veteran has received for a thoracolumbar spine disability since October 2018. 2. Arrange for an orthopedic examination(s) (with neurological consult if necessary) of the Veteran to ascertain the current severity of her thoracolumbar spine disability. Her claims file must be reviewed by the examiner in conjunction with the examination. Any studies indicated should be completed, and all pertinent findings should be reported in detail. The examiner should: (a) Assess the current severity of the Veteran’s service-connected thoracolumbar spine disability. The examiner must have available for review the criteria for rating spine disabilities in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (and the notes following), and the findings noted should include all information needed to rate the disability under those criteria. The findings must include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, with and without weight-bearing etc.). Specifically noted should be any ankylosis and whether there are neurologic manifestations, and if so their nature and severity, and whether there have been incapacitating episodes of associated disc disease (periods of bed rest prescribed by a physician), and if so, their frequency and duration. (b) The examiner is also asked to furnish a retrospective opinion regarding the functional loss from the Veteran’s service-connected thoracolumbar spine disability that occurs during flare-ups. The examiner must note (elicit from the Veteran a report of) the frequency and duration of flare-ups, and describe how/provide an estimate of the extent to which the back disability limits/limited the Veteran’s functioning during flare-ups (currently and since November 2008, as reflected by evidence of record, including her, and supporting, lay statements, to include whether the accounts are consistent with clinically recorded data). The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during a flare-up. If such cannot feasibly be described, or if an estimate of the additional impairment during flare-ups cannot be provided based on the Veteran’s reports and what is shown by clinical data in the record, there must be a full explanation why that is so. (c) If an opinion requested cannot be provided “without resort to mere speculation” there must be explanation why that is so. The examiner must expressly indicate whether the Veteran’s own descriptions of her functional impairment during flare-ups may be relied upon to form a conclusion, and if not, why not. Complete rationale should accompany all opinions. 3. Review the record, arrange for any further development deemed necessary, and readjudicate the claim for TDIU considering all additional information received, and the determination on the increased rating claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.