Citation Nr: 21040543 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 20-17 414 DATE: July 5, 2021 ORDER Service connection for gout has been withdrawn and is dismissed. Service connection is granted for an acquired psychiatric disorder, to include major depressive disorder and anxiety. is granted. REMANDED The appeal for an increased initial rating for a service-connected low back disability is remanded. The appeal for an increased rating for service-connected radiculopathy of the left lower extremity (sciatic nerve) is remanded. The appeal for an increased rating for service-connected radiculopathy of the left lower extremity (anterior crural nerve) is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At his January 2021 Board hearing, the Veteran clearly and unequivocally indicated that he wished to withdraw his claim for service connection for gout. 2. The evidence of record establishes that the Veteran has a currently diagnosed acquired psychiatric disorder, including major depressive disorder, and that this condition began during the Veteran's active duty service and is at least as likely as not causally linked to his military service. See January 2021 Board hearing testimony and April 2021 private treatment records, which includes a positive causal link ("nexus") medical opinion. CONCLUSIONS OF LAW 1. The criteria have been met for withdrawal of the claim for service connection for gout by the appellant (or his authorized representative). 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria have been met for service connection for an acquired psychiatric disorder, to include major depressive disorder and anxiety. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Coast Guard on active duty from January 2000 to May 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2017 and July 2018 rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). A January 2021 Board hearing was conducted before the undersigned at the Veteran's request, and a transcript of the hearing has been associated with the record. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for anxiety to encompass any acquired psychological disorder, to include anxiety and major depressive disorder. SERVICE CONNECTION 1. Service connection for gout is withdrawn and 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. The withdrawal of an appeal must be either in writing or on the record at a hearing. Id. Withdrawal can be by the Veteran or by his representative. Id. At the January 2021 Board hearing, the Veteran indicated he wished to withdrawal the appeal for service connection for gout. Based on the discussion before and during the hearing, the undersigned Veterans Law Judge is satisfied that this is an informed withdrawal. Accordingly, the Board finds this appeal is withdrawn and dismissal is warranted. 2. Service connection is granted for an acquired psychiatric disorder, to include major depressive disorder and anxiety. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND 1. The appeal for an increased initial rating for service-connected low back disability is remanded. 2. The appeal for an increased rating for service-connected radiculopathy, left lower extremity (sciatic nerve) is remanded. 3. The appeal for an increased rating for service-connected radiculopathy, left lower extremity (anterior crural nerve) is remanded. The above listed claims are closely related and are being remanded for similar reasons, thus, they will be addressed together for the purposes of this remand order. The Board finds a new VA examination is required for the above conditions in order for the Board to fairly and accurately adjudicate the Veteran's claims. The prior examination failed to address the effect of the Veteran's medications as well as nerve blocking and muscle spasms. Additionally, the Veteran testified about other conditions that he believes may be related to his service-connected low back and radiculopathy of his left lower extremity. Therefore, the Board finds a remand is needed in order to obtain new VA examinations. 4. TDIU is remanded. This issue is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. [The Board notes for the AOJ that the Veteran's claim for TDIU was initially filed with his April 2017 claim and has been continuously on appeal since that time.] The matters are REMANDED for the following action: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should arrange for an ORTHOPEDIC AND NEUROLOGIC examinations of the Veteran to assess the current severity of his service-connected low back and radiculopathy of his left lower extremity (sciatic and anterior crural nerves) disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. IF PAIN IS NOTED, THE POINT IN THE RANGE OF MOTION AT WHICH PAIN STARTS SHOULD BE CLEARLY NOTED. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. The examiner should address the Veteran's medications, nerve blocking, and muscle spasms. Additionally, the examiner must address any potential additional neurologic conditions, such as erectile dysfunction or any other neurologic symptoms associated with his low back and radiculopathy disabilities. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.