Citation Nr: 21030474 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-33 755 DATE: May 19, 2021 ORDER Entitlement to a disability rating higher than 20 percent for service-connected lumbar strain is dismissed. REMANDED Entitlement to a disability rating higher than 10 percent for service-connected right ankle sprain is remanded. FINDING OF FACT In September 2019 correspondence received prior to the promulgation of a decision in this appeal, the Veteran withdrew his claim for a higher rating for his service-connected lumbar strain. CONCLUSION OF LAW The criteria are met for withdrawal of the appeal of the claim for a higher rating for the service-connected lumbar strain. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1984 to October 1990. He was scheduled to testify before a Veterans Law Judge (VLJ) of the Board of Veterans' Appeals (Board/BVA) in April 2021; however, he did not attend the hearing. Therefore, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2018). In this circumstance, without justifiable ("good cause") explanation for his absence, the Board has no duty to offer him another opportunity for a hearing. Consider also that the Veteran's additional claim of entitlement to service connection for major depressive disorder was granted by the local Regional Office (RO) in an April 2019 rating decision during the pendency of this appeal. If he disagrees with the rating and/or effective date assigned for that now service-connected disability, he must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to a disability rating higher than 20 percent for service-connected lumbar strain The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 by the appellant or authorized representative. 38 C.F.R. § 20.204; Anderson v. Brown, 9 Vet. App. 542 (1996). On August 31, 2020, the U. S. Court of Appeals for Veterans Claims (CAVC) issued a panel decision in Hembree v. Wilkie, 33 Vet. App. 1 (2020), which held that a written withdrawal request is effective where it includes (i) the name of the veteran/claimant/appellant, (ii) the file number, and (iii) a statement that the appeal is withdrawn. See also 38 C.F.R. § 20.204(b). If the appeal involves multiple issues, the Veteran must specify whether the appeal is withdrawn in its entirety or list the issues withdrawn from appeal. 38 C.F.R. § 20.204(b). A withdrawal is effective upon receipt of the request. 38 C.F.R. § 20.204(b)(3). By way of procedural history, in a July 2008 rating decision, the RO granted the Veteran's claim of entitlement to service connection for lumbar strain and assigned a 10 percent initial rating for this disability retroactively effective from November 2, 2007. However, after considering the results of a January 2009 VA examination, the RO increased the rating for this low back disability 20 percent retroactively effective from December 15, 2008. More recently, in March 2012, the Veteran filed a claim for an increased rating for his service-connected lumbar strain, which the RO denied in a November 2012 rating decision. He appealed that decision to this Board. See January 2017 VA Form 9, Substantive Appeal to the Board. But, in September 2019 correspondence since received during the pendency of this appeal, the Veteran's representative indicated the Veteran is withdrawing his appeal of this claim for a disability rating higher than 20 percent for his service-connected lumbar strain. As the September 2019 written withdrawal request includes the Veteran's name, file number, a statement affirming he is withdrawing his appeal of this claim, and specifies the issue being withdrawn, the Board finds that he has effectively withdrawn this claim. As such, there remain no allegations of error of fact or law for appellate consideration concerning this claim. Accordingly, the Board does not have jurisdiction over this claim and it, consequently, is summarily dismissed. REASONS FOR REMAND Entitlement to a disability rating higher than 10 percent for service-connected right ankle sprain is remanded. The Veteran was last afforded a VA examination assessing the severity of his service-connected right ankle sprain in October 2015, so almost six years ago. That examination is unduly remote, and there is insufficient medical and other evidence on file during the several years since from which the Board can accurately determine the current severity of this disability. Therefore, a new VA examination is needed reassessing the severity of this service-connected disability. See Weggenmann v. Brown, 5 Vet. App. 281 (1993); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, this claim is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim for a higher rating for his right ankle disability, whether VA and/or private, following proper procedures. See 38 C.F.R. §§ 3.159(c) and (e). 2. After obtaining all additional treatment or other relevant records, schedule the Veteran for a VA examination with an appropriate clinician to reassess the severity of his service-connected right ankle disability. A copy of this remand and all relevant medical records should be made available to the examiner for review. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake all indicated testing and evaluation. All testing indicated by the current Disability Benefits Questionnaire (DBQ) format must be done or explanation provided as to why it could not be completed. The examiner should report all signs and symptoms necessary for rating the Veteran's right ankle disability under the applicable rating criteria. To this end, the examiner should provide the range of motion in degrees of the right ankle. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing, he or she should clearly discuss why in the report. The presence of objective evidence of pain, premature or excess fatigability, incoordination and weakness also should be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. 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. In reassessing the severity of the Veteran's disability, the examiner is asked to address the extent to which the functional impairment caused by this disability impairs the Veteran's ability to meet the demands of a job, whether sedentary or physical, and the timeframe in which this impairment arose. All opinions and conclusions by the examiner, irrespective of whether favorable or unfavorable to the claim, must be sufficiently explained - preferably citing to supporting evidence in the file and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.