Citation Nr: 21032166 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-11 535 DATE: May 26, 2021 ORDER The appeal as to whether withholding of Special Separation Benefits (SSB) was proper is dismissed. The appeal as to a rating higher than 20 percent for cervical radiculopathy of the right upper extremity is dismissed. The appeal as to a rating higher than 30 percent for bronchitis with asthma is dismissed. REMANDED Service connection for a left hip disorder. Service connection for a right hip disorder. An initial rating higher than 30 percent for posttraumatic stress disorder (PTSD). A total disability rating based on individual unemployability (TDIU). FINDING OF FACT In March 2021, prior to the promulgation of a Board decision, the Veteran withdrew the appeal with respect to the issues of whether withholding of SSB was proper, an initial rating higher than 20 percent for cervical radiculopathy of the right upper extremity, and a rating higher than 30 percent for bronchitis with asthma. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of whether withholding of SSB was proper have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of a rating higher than 20 percent for cervical radiculopathy of the right upper extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal of a rating higher than 30 percent for bronchitis with asthma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1982 to June 1985 and from January 1987 to June 1992. This case is on appeal from March 2015, November 2015, and November 2018 decisions, as well as a July 2017 determination with respect to whether withholding of SSB was proper. In March 2018, the Veteran testified at a Board hearing before the undersigned. In September 2018, the Board reopened the claims with respect to a right knee disability, a bilateral hip disability, and diabetes, and remanded the underlying service connection claims, along with the increased rating claims for DDD of the cervical spine, DDD of the lumbar spine, radiculopathy of the right lower extremity, asthma/bronchitis, as well a TDIU. In February 2019, the Board granted an initial 20 percent rating for radiculopathy of the right lower extremity, and denied service connection for diabetes mellitus, as well as ratings higher than 20 percent for degenerative disc disease (DDD) of the lumbar and cervical spine. The issues of service connection for a left hip disorder, a right hip disorder, and a right knee disorder, along with a rating higher than 30 percent for asthma and bronchitis, as well as a TDIU, were remanded for additional development. The Board decision noted that the Veteran would be scheduled for the Board hearing requested in his May 2018 substantive appeal with respect to whether the withholding of SSB was proper. While on remand, the Veteran perfected an appeal of the November 2018 rating decision that assigned an initial 30 percent rating for PTSD and a 20 percent rating for cervical radiculopathy of the right upper extremity. See March 2019 NOD; November 2019 Form 9. As such, those issues are properly before the Board as reflected on the title page. By rating decision in March 2020, the RO granted service connection for a right knee disability. This represents a full grant of the benefits sought with respect to that issue. In March 2021, the Veteran testified at a Board hearing before the undersigned, including as to the issue of an initial rating higher than 30 percent for PTSD. 1. Whether withholding of SSB was proper. 2. A rating higher than 20 percent for cervical radiculopathy of the right upper extremity. 3. A rating higher than 30 percent for bronchitis with asthma. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. At the March 2021 Board hearing, the Veteran's attorney representative stated that the Veteran withdrew the issues of whether withholding of SSB was proper, a rating higher than 20 percent for cervical radiculopathy of the right upper extremity, and a rating higher than 30 percent for bronchitis with asthma. See March 2021 Board hearing testimony. The Board finds that the Veteran's withdrawal of the issues of whether withholding of SSB was proper, a rating higher than 20 percent for cervical radiculopathy of the right upper extremity, and a rating higher than 30 percent for bronchitis with asthma on appeal is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). This was an express statement made by the Veteran's attorney representative on the record at the hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of whether withholding of SSB was proper, a rating higher than 20 percent for cervical radiculopathy of the right upper extremity, and a rating higher than 30 percent for bronchitis with asthma, and they are dismissed. REASONS FOR REMAND 1. Service connection for a left hip disorder. 2. Service connection for a right hip disorder. The Veteran maintains that his hip conditions are related to service or are secondary to service-connected disabilities, including a right knee disability and a back disability. Pursuant to the Board's February 2019 remand, the Veteran was afforded a VA examination in April 2019. The report of examination reflects arthritis of the right hip only, and, notes no evidence of care for a right or left hip condition in the record. However, the opinion does not address records reflecting right hip pain in July 1995 and arthritis involving multiple joints in November 1994, as noted in the Board remand. Further, in a September 2019 VA addendum opinion, the examiner noted that the diagnosis of arthritis of the left hip was erroneously omitted from the diagnosis list in the April 2019 examination report, and in a January 2020 addendum, the examiner stated that the September 2019 addendum opinion relating the Veteran's right hip arthritis to service was provided in error, noting no in-service disease or injury of the right hip. Additionally, and although the examiner opined that the Veteran's arthritis of the right and left hip was less than likely caused or aggravated by service-connected disabilities, thereafter, service connection was granted for arthritis of the right knee. See March 2017 Notification Letter; February 2020 VA 21-2507a. Based on the foregoing, the opinions are not completely adequate. Thus, a new VA examination is warranted. 3. An initial rating higher than 30 percent for PTSD. The Veteran seeks an initial higher initial rating for service-connected PTSD. He maintains that his depression is worse, that he has crying spells every four to six months, and that he has increased difficulty with memory and concentration. See March 2021 Board hearing testimony. As there is an indication that the Veteran's PTSD has worsened, VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). 4. A TDIU. Because a decision on the remanded issue of an initial higher rating for PTSD could significantly impact a decision with respect to a TDIU, the issues are inextricably intertwined. Thus, a remand of the issue of a TDIU is required. On remand, outstanding VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records. 2. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician, other than the April 2014 examiner, to determine the nature and etiology of a right and left hip disorder. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should opine whether it is at least as likely as not (a 50 percent or greater probability) that any right hip disorder (other than service-connected radiculopathy of the right lower extremity), or left hip disorder, to include arthritis: (a) had its onset during, or is otherwise related to, active service, or (b) is caused or aggravated by his service-connected lumbar spine disability or right knee disability. Aggravation is an increase in severity beyond the natural progress of the disease. In rendering the opinion, the examiner should address the Veteran's service treatment records, to include an April 1989 record noting sore knees from absorbing pressure due to a swollen ankle; the November 1994 VA examination report reflecting an assessment of arthritis involving multiple joints; VA treatment records in September 1996 noting that x-ray examination in April 1996 reflected multiple sclerotic areas along the superior margins of both hip joints felt to represent bone islands; and the Veteran's statements, to include having symptoms for 15 to 20 years. (Continued on the next page) Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. 3. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected PTSD. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.