Citation Nr: 21015120 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-08 730 DATE: March 16, 2021 ORDER The issue of service connection for a left hip disability is dismissed. The issue of service connection for a right hip disability is dismissed. The issue of service connection for a left knee disability is dismissed. The issue of service connection for a right knee disability is dismissed. The issue of service connection for a left shoulder disability is dismissed. The issue of service connection for a right shoulder disability is dismissed. REMANDED The issue of a rating in excess of 40 percent for lumbar spine disability is remanded. The issue of a rating in excess of 20 percent for left lower extremity radiculopathy disability is remanded. The issue of a rating in excess of 20 percent for right lower extremity radiculopathy disability is remanded. The issue of service connection for a left foot disability is remanded. The issue of service connection for a right foot disability is remanded. The issue of service connection for a cervical spine disability is remanded. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. At the January 27, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of service connection for a left hip disability. 2. At the January 27, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of service connection for a right hip disability. 3. At the January 27, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of service connection for a left knee disability. 4. At the January 27, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of service connection for a right knee disability. 5. At the January 27, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of service connection for a left shoulder disability. 6. At the January 27, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim of service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of service connection for a left hip disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal of the issue of service connection for a right hip disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal of the issue of service connection for a left knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal of the issue of service connection for a right knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of an appeal of the issue of service connection for a left shoulder disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of an appeal of the issue of service connection for a right shoulder 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 from June 1977 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the Board. Dismissals 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. During the January 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issues of service connection for a bilateral hip, bilateral knee, and bilateral shoulder disability. Hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. REASONS FOR REMAND Lumbar Spine Disability VA examination is needed to ascertain the current severity of the Veteran’s service-connected lumbar spine disability as the evidence suggests that such may have worsened since his most recent VA examination in September 2018. During the January 2021 Board hearing, the Veteran testified that he is essentially in bed the whole day because of his back pain. During September 2018 VA examination, the examiner indicated the Veteran suffered from symptoms due to intervertebral disc syndrome (IVDS) with episodes of bed rest having a total duration of at least 1 week but less than 2 weeks during the past 12 months. During the January 2021 Board hearing, the Veteran’s representative indicated that the Veteran’s treating physician, Dr. Mary Whooley, provided a January 2021 report noting that the Veteran has been suffering from episodes of bed rest having a total duration of at least 6 weeks during the past 12 months. Significantly, however, it does not appear that the January 2021 report by Dr. Whooley is in the claims file. Accordingly, while the case is in remand status, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Dr. Whooley, or complete a release for such provider; if any releases are returned, VA must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (stating that “[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records”). Bilateral Foot Disability During the January 2021 Board hearing, the Veteran’s representative indicated that the Veteran’s treating physician, Dr. Whooley, provided a January 2021 opinion that it is at least as likely as not the Veteran’s left and right foot problems stem from the traumatic landing during the Veteran’s work as a paratrooper. As noted above, it does not appear that the January 2021 report by Dr. Whooley is in the claims file. Accordingly, while the case is in remand status, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Dr. Whooley, or complete a release for such provider; if any releases are returned, VA must attempt to obtain the identified records. Cervical Spine Disability During the January 2021 Board hearing, the Veteran’s representative indicated that the Veteran’s treating physician, Dr. Whooley, provided a January 2021 opinion that it is as least as likely as not that the Veteran’s cervical spine disability is at least as likely as not the result of his work as a paratrooper while in the military. The Veteran’s representative stated that Dr. Whooley reasoned that the force that is associated with work as a paratrooper, i.e. hard landings, likely caused the advanced degeneration in the Veteran’s cervical spine. As noted above, it does not appear that the January 2021 report by Dr. Whooley is in the claims file. Accordingly, while the case is in remand status, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Dr. Whooley, or complete a release for such provider; if any releases are returned, VA must attempt to obtain the identified records. Bilateral Lower Extremity Radiculopathy Remand is required as the bilateral lower extremity radiculopathy increased rating claims are inextricably intertwined with the lumbar spine disability increased rating claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In this regard, a new VA examination is being ordered on remand for the lumbar spine disability, and the DBQ that will likely be completed (VA Form 21-0960M-14, Back (Thoracolumbar Spine) Conditions) contains portions relevant to the Veteran’s radiculopathy disability and therefore the DBQ will likely contain information relevant to the radiculopathy increased rating claim. TDIU The TDIU claim is inextricably intertwined with the increased rating claims being remanded herein, as the outcome of those claims may impact the TDIU claim. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Contact the Veteran and request that he either provide any outstanding relevant private treatment records, to include any records from Dr. Mary Whooley, or complete a release for such provider; if any releases are returned, attempt to obtain the identified records. 3. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. His claims file must be made available to the examiner for review in connection with the examination. Any indicated tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must provide a complete rationale for any opinion given. 4. After conducting any additional indicated development, adjudicate the issues on appeal. If the claims remain denied, the Veteran and his attorney should be issued a Supplemental Statement of the Case. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.