Citation Nr: 21032337 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-54 562 DATE: May 26, 2021 ORDER 1. The appeal seeking an earlier effective date for the grant of service connection for the low back disability is dismissed. REMANDED 2. Entitlement to a rating in excess of 10 percent for a low back disability, to include entitlement to a temporary total rating for convalescence following surgery during the period for consideration, is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT On the record at a May 2021 virtual hearing before the undersigned, the Veteran withdrew his appeal seeking an earlier effective date for the grant of service connection for his back disability; there are no questions of fact or law remaining for the Board to consider in that matter. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran are met with respect to the claim seeking an earlier effective date for the grant of service connection for a back disability; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. §§ 7104, 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1998 to June 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2016 Department of Veterans Affairs (VA) rating decision (which awarded service connection for a back disability, rated 0 percent, effective December 15, 2015). An October 2017 rating decision increased (to 10 percent) the rating for the back disability, also effective December 15, 2015. In May 2021, a virtual hearing was held before the undersigned; the Veteran's representative from American Legion did not appear. A transcript of the hearing has not yet been associated with the file. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. 1. The appeal seeking an earlier effective date for the grant of service connection for a back disability is dismissed. Under 38 U.S.C. § 7104, the Board has jurisdiction where there is a question of law or fact necessary for the Secretary of VA to decide under a law governing the provision of benefits by VA. 38 C.F.R. § 20.101. 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 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 made by the appellant or by his or her authorized representative, in writing or on the record during a hearing, and is effective when received. C.F.R. § 20.204. On the record during a May 2021 hearing before the undersigned, the Veteran, affirmed he was withdrawing his appeal seeking an earlier effective date for the grant of service connection for a back disability. It was established that he was aware of the consequences of the withdrawal of this matter, and did not want to pursue it further. There is no allegation of error of fact or law remaining for appellate consideration as to this issue. Accordingly, the Board no longer has jurisdiction to consider the appeal in the matter. REASONS FOR REMAND 2. Entitlement to an increased rating for a back disability. At the May 2021 hearing, the Veteran stated that his back disability has worsened since his last [May 2017] examination to assess the disability. He testified that he underwent back surgery in 2020 and his back disability is worsened from prior to and since that surgery. Considering the allegation of worsening and the surgery since he was last examined, a contemporaneous examination to assess the back disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). He also indicated that his representative had not advised him to file for a temporary total (convalescence) rating following the surgery and indicated he wanted to do so. 3. Entitlement to a TDIU rating. When evidence of unemployability is submitted during the course of an appeal of a rating assigned for a disability or such is specifically alleged, a claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim is inextricably intertwined with the remanded claim seeking an increased rating for back disability. See February 2016 VA Form 21-8940. Therefore, consideration of the matter is deferred pending development and resolution of that claim. The matters are REMANDED for the following: 1. Obtain for the record all outstanding (any not already associated with the record), updated to the present, records of evaluations and treatment the Veteran has received for his back disability. He must assist in this matter by identifying all providers and submitting authorizations for VA to secure complete clinical records of the evaluations and treatment from all private providers identified. Secure for the record updated (to the present, all outstanding) complete clinical records of VA evaluations and treatment the Veteran has received for the back disability on appeal. Specifically, obtain outstanding treatment records including those leading up to the 2020 surgery, of the surgery, and those following the surgery. 2. Provide the Veteran the appropriate forms to complete and advise him of what is needed to file a claim for a temporary total rating for convalescence following his recent back surgery, Afford him opportunity to submit such claim and the supporting evidence and information required. Assist him in securing supporting documentation, if needed. 3. Thereafter, arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected spine disability. The examiner must review the Veteran's claims file. Any indicated studies should be completed. Findings reported must include complete range of motion studies (with notation of any additional functional limitations due to factors such as weakness, pain, incoordination, weight-bearing and fatigue, use, etc). The examiner should note results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. All findings and related functional impairment should be described in detail. The examiner should comment on any restrictions on occupational and daily activity functions due to the disabilities. Any associated neurological symptoms found should be described in detail. It should also be noted whether there have been incapacitating episodes of disc disease (bedrest prescribed by a physician, and if so the duration and frequency of such episodes). The examiner should elicit from the Veteran information regarding the nature and extent of his convalescence following his recent back surgery, and whether he has had flare-ups of the back disability (and if so, describe the additional symptoms and impairment present during flare-ups, and report the frequency and duration of such). If flare-ups are reported, the examiner should indicate whether the Veteran's descriptions of flare-ups are consistent with the disability picture clinically presented. All opinions must include rationale. 4. Then, review the record; arrange for any further development necessary (e.g., a medical advisory opinion regarding the extent of convalescence required following the Veteran's back surgery in 2020); and adjudicate the matter of entitlement to temporary total rating under 38 C.F.R. § 4.30, and notify the Veteran of the determination (and appellate rights). 5. Upon readjudication of the other claims remanded, and following any further development indicated, readjudicate the claim for a TDIU rating considering those determinations. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED