Citation Nr: 21020831 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-22 779 DATE: April 8, 2021 ORDER Entitlement to a compensable disability rating for service-connected allergic rhinitis is dismissed. Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to an initial compensable disability rating for service-connected chondromalacia patella syndrome, right knee, is remanded. Entitlement to an initial compensable disability rating for service-connected chondromalacia patella syndrome, left knee, is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected chronic lumbar strain is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected tendonitis, left shoulder, is remanded. Entitlement to an initial disability rating in excess of 30 percent for service-connected migraines is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected chronic sinusitis is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected adjustment disorder with mixed anxiety and depressed mood is remanded. FINDINGS OF FACT 1. On September 17, 2019, prior to promulgation of a decision in the appeal, the Veteran, through his attorney, requested in writing the withdrawal of his appeal as to the issue of entitlement to an increased rating for service-connected allergic rhinitis. 2. On September 17, 2019, prior to promulgation of a decision in the appeal, the Veteran, through his attorney, requested in writing the withdrawal of his appeal as to the issue of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal and dismissal of the appeal as to the issue of an increased rating for allergic rhinitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal and dismissal of the appeal as to the issue of service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Introduction The Veteran served honorably on active duty in the United States Army during the Gulf War Era, from May 2009 to September 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and April 2016 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and Newnan, Georgia, respectively. In this merged appeal, both of the Veteran’s substantive appeal forms (VA Form 9) dated May 2016 and August 2016 requested a live videoconference hearing before a Veterans Law Judge (VLJ). However, shortly after issuing notice of the scheduled hearing, the Board received correspondence from the Veteran’s attorney dated April 2019 requesting the “hearing be cancelled” and not rescheduled. Accordingly, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to a compensable disability rating for service-connected allergic rhinitis is dismissed. Entitlement to service connection for bilateral hearing loss 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. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. On September 17, 2019, the Veteran submitted a written statement through his attorney stating that he “would like to withdraw [his] appeals for service connection for hearing loss, and increased compensation for [his] rhinitis.” Further, the Veteran stated he understands “the consequences of this decision.” The Board finds the written statement made by the Veteran and his attorney is explicit and unambiguous indication that he wished to withdraw his appeals for an increased rating for service-connected allergic rhinitis and service connection for bilateral hearing loss, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. § 19.55. As such, there remain no allegations of error of fact or law for appellate consideration with respect to the issues of an increased rating for service-connected allergic rhinitis and service connection for bilateral hearing loss. Accordingly, the Board does not have jurisdiction to review the appeal on these issues and they are dismissed. REASONS FOR REMAND Entitlement to an initial compensable disability rating for service-connected chondromalacia patella syndrome, right knee, is remanded. Entitlement to an initial compensable disability rating for service-connected chondromalacia patella syndrome, left knee, is remanded. The Veteran’s attorney argues that he is entitled to at least the minimum compensable initial rating for his service-connected bilateral chondromalacia patella syndrome, and cites 38 C.F.R. § 4.59 and Saunders v. Wilkie, 886 F.3d 1356 (2018). The Veteran last underwent a VA examination related to his increased rating claims for right and left knee disabilities in June 2014. Since then, additional VA treatment records added to the claims file indicate the Veteran exhibited pain with range of motion in August 2015, and was fitted for bilateral knee braces in November 2015. The most recent medical treatment records contained in the claims file are VA records dated 2016. When the evidence of record does not show the current state of the Veteran’s disability, a more current VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Moreover, since the Veteran last attended a VA examination, the United States Court of Appeals for Veterans Claims (Court) issued decisions in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Therefore, remand is required to obtain updated treatment records and provide the Veteran with an updated VA examination that evaluates his service-connected right and left chondromalacia patella syndrome for the entire period on appeal. Entitlement to a disability rating in excess of 10 percent for service-connected chronic lumbar strain is remanded. The Veteran and his attorney contend that he is entitled to separate evaluations for neurological abnormalities, specifically, bilateral lower extremity radiculopathy, as associated with his service-connected chronic lumbar strain. The Veteran last underwent a VA examination related to his increased rating claim for service-connected chronic lumbar strain in April 2016. The most recent medical treatment records contained in the claims file are VA records dated 2016. Since then, in a September 2019 statement, the Veteran described experiencing symptoms including “pins/needles/numbness that extends down [his] legs to [his] feet … on a regular basis, as well as pain that radiates down my legs on an occasional basis.” When the evidence of record does not show the current state of the Veteran’s disability, a more current VA examination must be conducted. See Schafrath, 1 Vet. App. at 595. Moreover, since the Veteran last attended a VA examination, the Court issued decisions in Correia, 28 Vet. App. 158, and Sharp, 29 Vet. App. 267). Additionally, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Therefore, remand is required to obtain updated treatment records and provide the Veteran with an updated VA examination that evaluates his service-connected chronic lumbar strain, including any associated neurological abnormalities, for the entire period on appeal. Entitlement to a disability rating in excess of 20 percent for service-connected tendonitis, left shoulder, is remanded. The Veteran last underwent a VA examination related to his increased rating claim for service-connected left shoulder tendonitis in April 2016. The most recent medical treatment records contained in the claims file are VA records dated 2016. When the evidence of record does not show the current state of the Veteran’s disability, a more current VA examination must be conducted. See Schafrath, 1 Vet. App. at 595. Moreover, since the Veteran last attended a VA examination, the Court issued decisions in Correia, 28 Vet. App. 158, and Sharp, 29 Vet. App. 267). Additionally, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Therefore, remand is required to obtain updated treatment records and provide the Veteran with an updated VA examination that evaluates his service-connected left shoulder tendonitis for the entire period on appeal. Entitlement to an initial disability rating in excess of 30 percent for service-connected migraines is remanded. The Veteran’s attorney contends that he is entitled to “a 50% evaluation for migraines from September 16, 2013.” The Veteran last underwent a VA examination related to his increased rating claim for service-connected migraines in June 2014. The most recent medical treatment records contained in the claims file are VA records dated 2016. Since then, in a September 2019 statement, the Veteran described experiencing “severe and debilitating” migraines “much more than once a month.” Symptoms reportedly included “severe extreme head pain, pressure behind [his] eyes …, nausea/dizziness, and severe light/sound sensitivity.” When the evidence of record does not show the current state of the Veteran’s disability, a more current VA examination must be conducted. See Schafrath, 1 Vet. App. at 595. Therefore, remand is required to obtain updated treatment records and provide the Veteran with an updated VA examination that evaluates his service-connected migraines for the entire period on appeal. Entitlement to an initial disability rating in excess of 10 percent for service-connected chronic sinusitis is remanded. The Veteran’s attorney contends that “at least a 30% evaluation for chronic sinusitis” is warranted based upon the Veteran’s symptomology. The Veteran last underwent a VA examination related to his increased rating claim for service-connected chronic sinusitis in April 2016. The most recent medical treatment records contained in the claims file are VA records dated 2016. Since then, in a September 2019 statement, the Veteran described experiencing “frequent non-incapacitating episodes of sinusitis,” which “typically consists of really bad pressure in my sinuses and forehead, severe pressure headaches, severe stuffy nose, sometimes runny nose, and my nose crusts up.” According to the Veteran, he has “these non-incapacitating episodes at least 10 times per year, and many times [he] [has] to call out of work due to this condition.” When the evidence of record does not show the current state of the Veteran’s disability, a more current VA examination must be conducted. See Schafrath, 1 Vet. App. at 595. Therefore, remand is required to obtain updated treatment records and provide the Veteran with an updated VA examination that evaluates his service-connected chronic sinusitis for the entire period on appeal. Entitlement to a disability rating in excess of 30 percent for service-connected adjustment disorder with mixed anxiety and depressed mood is remanded. The Veteran’s attorney contends that a 70 percent disability rating is warranted for his service-connected adjustment disorder with mixed anxiety and depressed mood. The Veteran last underwent a VA examination related to his increased rating claim for service-connected adjustment disorder with mixed anxiety and depressed mood in April 2016. The most recent medical treatment records contained in the claims file are VA records dated 2016. Since then, in a September 2019 statement, the Veteran described experiencing “significant social impairment,” including isolation, extreme anxiety around groups of people, occupational impairment, panic attacks “most mornings,” racing thoughts, racing heart, sweaty palms, and insomnia occurring “at least 3 times per week.” Further, the Veteran reported occasional suicidal thoughts, poor short-term memory, severe difficulty concentrating, and impaired impulse control. When the evidence of record does not show the current state of the Veteran’s disability, a more current VA examination must be conducted. See Schafrath, 1 Vet. App. at 595. Therefore, remand is required to obtain updated treatment records and provide the Veteran with an updated VA examination that evaluates his service-connected adjustment disorder with mixed anxiety and depressed mood for the entire period on appeal. Accordingly, these matters are REMANDED for the following actions: 1. Schedule the Veteran for an in-person VA orthopedic examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected right and left chondromalacia patella syndrome, chronic lumbar strain, and left shoulder tendonitis for the entire period on appeal. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must provide a full description of the disabilities and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected right and left chondromalacia patella syndrome, chronic lumbar strain, and left shoulder tendonitis under the rating criteria existing both prior to and after the February 7, 2021, revisions and for the entire period on appeal. ROM measurements must be included for both active and passive motion and on weight-bearing and non-weight-bearing. If pain is noted, the point in the ROM at which pain starts must be clearly noted. The examiner must also assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional ROM loss. If the Veteran is not experiencing a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran. In offering the above opinions, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the Veteran’s statement dated September 2019 regarding symptomology, functional limitations, and describing radicular symptoms in his bilateral lower extremities. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. 2. Schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected migraine headaches for the entire period on appeal. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must provide a full description of the disability and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected migraine headaches under the rating criteria and for the entire period on appeal. In offering the above opinion(s), the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the Veteran’s statement dated September 2019 regarding frequency and duration of symptomology and functional limitations. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. 3. Schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected chronic sinusitis for the entire period on appeal. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must provide a full description of the disability and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected chronic sinusitis under the rating criteria and for the entire period on appeal. In offering the above opinion(s), the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the Veteran’s statement dated September 2019 regarding the nature and severity of “non-incapacitating episodes” and functional limitations. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. 4. Schedule the Veteran for an in-person VA examination with a psychiatrist or psychologist possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood for the entire period on appeal. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Based upon a review of all pertinent documents in the Veteran’s claims file, including medical treatment and examination records, lay statements, and the examination results, the examiner must provide a full description of the disability and report all signs, symptoms, and treatment necessary for evaluating the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood under the rating criteria and for the entire period on appeal. In offering the above opinion(s), the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the Veteran’s statement dated September 2019 regarding the frequency, nature, and severity of his symptomology and functional limitations; and, (b.) the Veteran’s attorney’s October 2019 contention that it is factually ascertainable an increase in disability occurred within the one-year period prior to February 3, 2016. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.