Citation Nr: 21041214 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-05 044 DATE: July 8, 2021 ORDER. The appeal for entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity prior to September 15, 2020 and in excess of 20 percent from September 16, 2020, is dismissed. REMANDED A rating in excess of 20 percent for a low back disability from April 08, 2011 to February 16, 2015 and in excess of 40 percent from February 17, 2015, is remanded. Entitlement to an effective date prior to February 17, 2015 for the assignment of a 40 percent rating for a low back disability is remanded. Entitlement to a rating in excess of 30 percent from April 11, 2011 to May 15, 2019; in excess of 50 percent from May 16, 2019 to December 17, 2020; and in excess of 70 percent from December 18, 2020 for major depressive disorder, recurrent, moderate, and unspecified anxiety disorder, is remanded. Entitlement to total disability individual unemployability (TDIU) is remanded FINDING OF FACT On December 9, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issue of an increased rating for radiculopathy of the right lower extremity was requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2012 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 Board order and remand, the Board denied the Veteran's claim for an effective date prior to February 15, 2015 for service connection for radiculopathy of the right lower extremity and remanded claims for service connection for erectile dysfunction, entitlement to a rating in excess of 40 percent for a low back disability, entitlement to a rating in excess of 30 percent for a psychiatric disability, entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity, and entitlement to an effective date prior to February 17, 2015 for the assignment of a 40 percent rating for a low back disability. In a September 2019 rating decision, the Veteran's claim for service connection for erectile dysfunction was granted in full and is no longer on appeal. In a May 2020 Board remand, the Board remanded the issues of entitlement to an effective date earlier than February 17, 2015 for the increased rating of 40 percent for lumbosacral strain, entitlement to an increased rating greater than 40 percent for lumbosacral strain, entitlement to an increased initial rating greater than 10 percent for right lower extremity radiculopathy, entitlement to an increased rating greater than 30 percent for major depressive disorder (MDD) prior to May 16, 2019, and entitlement to an increased rating greater than 50 percent for MDD from May 16, 2019. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity prior to September 15, 2020 and in excess of 20 percent from September 16, 2020 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 Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran wrote in a December 9, 2020, statement that he did not request an increase for his right lower extremity radiculopathy condition. He requested this issue be removed from the November 2018 remand and for the Board to proceed with making a decision without this condition. The Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. A rating in excess of 20 percent for a low back disability from April 08, 2011 to February 16, 2015 and in excess of 40 percent from February 17, 2015 The September 2020, October 2018, and February 2015 VA examiners indicated they could not describe the Veteran's functional ability with repeated use over a period of time in terms of range of motion. The February 2015 VA examiner noted pain, fatigue, and lack of endurance caused functional loss. He indicated he could not describe functional loss in terms of range of motion because the Veteran did not present a change in range of motion. The October 2018 VA examiner found pain significantly limited the Veteran's functional ability with repeated use over a period of time but indicated he could not describe it in terms of range of motion because the exam was not during repetitive use over time. The September 2020 VA examiner noted pain caused functional loss. He indicated he could not describe the functional loss in terms of range of motion and explained there was no additional range of motion loss, but heavy and repeated activity worsens pain, which inhibits his ability to continue. Remand is necessary for an addendum opinion to obtain estimates of functional loss in terms of range of motion. The examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The explanations noted by the examiners for why they could not estimate functional loss in terms of range of motion suggest they did not try to make such an estimate. An estimate of additional loss of the Veteran's range of motion should be provided or the clinician must specify that speculation would be due to lack of knowledge within the medical community. 2. Entitlement to an effective date prior to February 17, 2015 for the assignment of a 40 percent rating for low back disability Considering a decision on the remanded issue above, of an increased rating for a low back disability, could significantly impact a decision on the issue of entitlment to an earlier effective date, the issues are inextricably intertwined. A remand of the claim for an earlier effective date for the assignment of a 40 percent rating for a low back disability is required. 3. Entitlement to a rating in excess of 30 percent from April 11, 2011 to May 15, 2019; in excess of 50 percent from May 16, 2019 to December 17, 2020; and in excess of 70 percent from December 18, 2020 for major depressive disorder, recurrent, moderate and unspecified anxiety disorder In his December 2012 Notice of Disagreement, the Veteran indicated that there was no mention of the VAMC Gainesville records from January 8, 2012. He was hospitalized there and then sent to the Vines in Ocala, Florida. He noted he stayed there for approximately a week and was suicidal at that time. He noted his parents' letters also mentioned this episode of his life. Treatment notes from January 2012 from VAMC Gainesville reflect the Veteran was admitted to treatment under the Baker Act and would be transferred to inpatient care. The Veteran was to be admitted to the Vines if accepted. The May 2012 letter from the Veteran's parents also discusses the Veteran's admission to the Vines. Remand is warranted to attempt to obtain any treatment records from the Vines. 4. Entitlement to total disability individual unemployability (TDIU) The Veteran indicated in an April 2011 statement that he would like to file a claim for unemployability. In July 2011, he filed a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. This claim, which is part and parcel of the Veteran's increased rating claims, has not yet been addressed by the RO. The Board notes the Veteran again filed a claim for TDIU in August 2018 that was discontinued by the RO, as discussed in a December 2019 letter. Although the Veteran requested to cancel his claim for TDIU in a December 17, 2019 telephone call, this was because he was at least two hours away from the nearest VA approved doctor for the compensation and pension exams and not because of a reported change in his symptoms. The Veteran previously reported a long history of many short-term jobs. However, during VA examinations in May and August 2019, examiners noted that the Veteran had earned a bachelor's degree in history and an associate's degree in Nursing. Correspondence from VA Vocational/Rehabilitation Counselors in September 2020 noted that the Veteran had completed a VA funded program of education and had been employed as a registered nurse since May 2020. In December 2020, the Veteran acknowledged a sign-on bonus from a medical facility, and another VA examiner noted the Veteran's report of working 50 hours per week as a registered nurse. Considering the Veteran's original claim for TDIU was never addressed and the Veteran appealed his increased rating claims, remand is warranted so the RO may issue a statement of the case on the issue of TDIU. See 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for The Vines in Ocala, Florida. Make two requests for the authorized records from The Vines unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from a qualified clinician to assess the severity of the Veteran's low back disability during the period on appeal. The examiner should provide estimates of any additional impairment due to repetitive use and flare ups throughout the period on appeal. If it is not possible to provide specific measurements based on direct observation, the examiner should provide estimates of any additional impairment due to flare-ups and repetitive use based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The need for another examination is left to the discretion of the examiner. (continued next page) 4. Send the Veteran a statement of the case that addresses the issue of TDIU. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.