Citation Nr: 21027494 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-58 570 DATE: May 5, 2021 ORDER Entitlement to special monthly compensation based on housebound criteria beyond the period from September 29, 2015, to January 1, 2016, is dismissed. REMANDED Entitlement to a compensable evaluation for a residual scar, status post lumbar spine left laminectomy is remanded. Entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy is remanded. Entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy is remanded. Entitlement to an evaluation higher than 10 percent for cervical degenerative joint disease and degenerative disc disease with spinal stenosis is remanded. Entitlement to an evaluation higher than 10 percent for degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome is remanded. Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. FINDING OF FACT At his March 2021 Board hearing, the Veteran withdrew his claim for a special monthly compensation based on housebound criteria beyond the period from September 29, 2015, to January 1, 2016. CONCLUSION OF LAW The appeal of the claim for a special monthly compensation based on housebound criteria beyond the period from September 29, 2015, to January 1, 2016, has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.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 1980 to June 1981 and from December 1991 to March 1995 with additional service in the reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes new and material evidence is not needed for the Veteran's claim for service connection for tinnitus. Originally, a February 2015 rating decision denied the claim. However, the Veteran continued to submit statements and medical records regarding his claim since the February 2015 rating decision, and the RO continued to developed the claim. See 38 C.F.R. § 3.156(b). In a July 2015 rating decision, the RO indicated the Veteran's claim was being denied because his evidence was not new and material. Again, new and material evidence was received within one year. See 38 C.F.R. § 3.156(b). A May 2016 rating decision notes the claim was being "reopened," and the denial was confirmed and continued. Nevertheless, because new and material evidence was submitted within one year of the February 2015 and July 2015 rating decisions, the case will be reviewed de novo. Entitlement to special monthly compensation based on housebound criteria beyond the period from September 29, 2015, to January 1, 2016, 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 appellant or by their authorized representative. 38 C.F.R. § 19.55. At his March 2021 Board hearing, the Veteran withdrew his claim for special monthly compensation based on housebound criteria beyond the period from September 29, 2015, to January 1, 2016. Accordingly, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. The Board does not have jurisdiction to review the issue, and dismissal is warranted. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for a residual scar, status post lumbar spine left laminectomy is remanded. The Veteran contends a higher rating is warranted for his scar. At his March 2021 Board hearing, the Veteran provided testimony that indicates a worsening of symptoms or symptoms that are not reflected in his current evaluation. The Veteran reported scar tissue has resulted in pain and nerve problems. Since there is an indication the Veteran's symptoms have worsened and the Veteran has not received a VA scar examination to describe the nature and condition of his scar, a remand is warranted for a VA scar examination. 2. Entitlement to an evaluation higher than 20 percent for right upper extremity radiculopathy is remanded. 3. Entitlement to an evaluation higher than 20 percent for left upper extremity radiculopathy is remanded. 4. Entitlement to an evaluation higher than 10 percent for cervical degenerative joint disease and degenerative disc disease with spinal stenosis is remanded. 5. Entitlement to an evaluation higher than 10 percent for degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome is remanded. The Veteran was last afforded a VA examination to assess the severity of his service-connected cervical spine, thoracolumbar spine, right upper extremity radiculopathy, and left upper extremity radiculopathy disabilities in 2016. At his March 2021 hearing, the Veteran testified his disabilities have worsened. Since there is an indication his symptoms have increased in severity and to ensure the record reflects the current severity of these service-connected disabilities on appeal, more contemporaneous examinations are warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 6. Service connection for bilateral hearing loss is remanded. 7. Service connection for tinnitus is remanded. Although a post-service May 2016 VA examination report does not show a hearing loss disability in accordance with 38 C.F.R. § 3.385, at his March 2021 hearing, the Veteran asserted a worsening of the severity of his hearing loss has occurred since that time, thereby raising the possibility that he now has a hearing loss disability in accordance with 38 C.F.R. § 3.385. Thus, he should be scheduled for an appropriate VA examination on remand. The claim for service connection for tinnitus is remanded as inextricably intertwined with the claim for service connection for bilateral hearing loss. The matters are REMANDED for the following action: 1. Ensure that that Veteran's complete service treatment records associated with his service in the Reserves have been obtained. 2. Obtain any updated VA treatment records and additional private treatment records related to the Veteran's claims. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residual scar, status post lumbar spine left laminectomy. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right upper extremity radiculopathy and left upper extremity radiculopathy. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected neck and back conditions. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. The examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Nonweightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing or non-weightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 6. Schedule the Veteran for a VA audiological examination, conducted by a state-licensed audiologist, to evaluate his claimed bilateral hearing loss. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list, unless the examiner certifies that use of a speech discrimination test is not appropriate and provides a supporting rationale. If hearing loss is shown in accordance with VA standards, the examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that the Veteran's hearing loss disability had its onset during service or is related to his in-service noise exposure. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Denton, Buck 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.