Citation Nr: 21020859 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 10-45 347 DATE: April 8, 2021 ORDER Entitlement to a disability in excess of 20 percent from November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) has been withdrawn. REMANDED Entitlement to a disability rating in excess of 10 percent prior to November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to April 15, 2011. FINDING OF FACT In January 2020 the Veteran’s representative submitted a letter from the Veteran requesting that his claim for an increased disability rating from November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) to be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of entitlement to a disability in excess of 20 percent from November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) by the Veteran and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1957 to October 1981 in the United States Army, to include active service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has remanded this matter several times, including February 2015, October 2016, March 2018, and August 2019. Most recently, in November 2019 the Board remanded this matter for additional development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). In April 2020, the Veteran was awarded an increased rating for his radiculopathy of the right lower extremity (claimed as right leg condition) which increased from 10 percent disabling to 20 percent, effective November 7, 2000. Entitlement to a disability in excess of 20 percent from November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) 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. In the present case, the Veteran, through his authorized representative, has withdrawn his appeal for entitlement to a disability in excess of 20 percent from November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability). However, the Veteran’s representative also stated that the Veteran is not withdrawing his claim for a rating in excess of 10 percent prior to November 7, 2011, for his service-connected back condition. See January 2020 Statement in Support of Claim. The Veteran’s representative also submitted a statement from the Veteran confirming his desire to withdraw his claim from November 7, 2011. Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to a disability in excess of 20 percent from November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) and it is dismissed. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent prior to November 7, 2011 for service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) is remanded. The Veteran contends that he is entitled to a higher initial rating for his service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability). In September 2019, the Veteran underwent a VA examination for his back condition. The examiner indicated that he could not estimate the degree of motion due to pain, fatigue, weakness or in-coordination with flare-ups, without resorting to mere speculation. The examiner stated that, “the degree of range of motion must be determined objectively by the clinical provider, and the measurements cannot be determined without direct contact with the Veteran or Service Member during the flares.” However, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community and did not specify what information would allow for such an opinion without resorting to speculation. Therefore, the medical opinion is not adequate for decision-making purposes, and the issues must be remanded so that an examiner can provide an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In November 2019, the Board remanded this matter for more development. Specifically, the Board requested that the RO schedule the Veteran for an examination that would allow the examiner to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. The RO did not schedule an exam after the Veteran withdrew his claim for a higher rating for the period from November 7, 2011. However, the period prior to that date remains in dispute, and this previously requested information is still necessary. The Board will defer adjudication of the issue of an earlier effective date for TDIU as it is inextricably intertwined with the claim for an increased rating for the back disorder. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate examiner to determine the severity of the Veteran’s service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome (lumbar spine disability) during flare-ups for the period prior November 7, 2011. The claims file and a copy of this remand must be made available for review. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements for the period prior to November 7, 2011. 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 opinion provided must be based on the totality of the evidence, to include the Veteran’s lay statements as to additional functional loss or limitation of motion experienced during flare-ups of pain and in terms of active and passive range of motion, in weightbearing and non-weight bearing. If this cannot be determined, the examiner should explain why in a fully informed rationale as to the inability to provide the requested opinion. 2. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 3. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist Associate 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.