Citation Nr: 22014744 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-13 682 DATE: March 14, 2022 ORDER The appeal as to the issue of entitlement to an increased rating for a left shoulder disability rated as 20 percent disabling prior to March 30, 2017, 100 percent disabling from March 30, 2017 to June 30, 2017, and 20 percent disabling thereafter has been withdrawn. REMANDED The issue of entitlement to an increased rating for a back disability rated as 20 percent disabling is remanded. The issue of entitlement to an increased rating for left lower extremity radiculopathy rated as 10 percent disabling effective December 18, 2014, is remanded. The issue of entitlement to an increased rating for right lower extremity radiculopathy rated as 10 percent disabling effective December 18, 2014, is remanded. FINDING OF FACT Prior to the promulgation of a decision regarding the issue of entitlement to an increased rating for a left shoulder disability rated as 20 percent disabling prior to March 30, 2017, 100 percent disabling from March 30, 2017 to June 30, 2017, and 20 percent disabling thereafter, the Veteran requested a withdrawal of the appeal of this issue. CONCLUSION OF LAW The criteria for withdrawal of the appeal regarding the issue of entitlement to an increased rating for a left shoulder disability rated as 20 percent disabling prior to March 30, 2017, 100 percent disabling from March 30, 2017 to June 30, 2017, and 20 percent disabling thereafter are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to August 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction is currently with the RO in Columbia, South Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2021 and a transcript of the hearing has been associated with the claims file. Entitlement to an increased rating for a left shoulder disability rated as 20 percent disabling prior to March 30, 2017, 100 percent disabling from March 30, 2017 to June 30, 2017, and 20 percent disabling thereafter 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. Id. In Acree v. O'Rourke, the Federal Circuit Court of Appeals held that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the veteran. 891 F.3d 1009 (Fed. Cir. 2018). Here, during the October 2021 Board hearing, the Veteran indicated that he wished to withdraw his appeal regarding the issue of entitlement to an increased rating for a left shoulder disability rated as 20 percent disabling prior to March 30, 2017, 100 percent disabling from March 30, 2017 to June 30, 2017, and 20 percent disabling thereafter. The Veteran's statement to withdraw was made on the record during his hearing and was later reduced to writing. The Board finds that this communication reflects an explicit and unambiguous withdrawal of the Veteran's claim and demonstrates a full understanding of the effect of such withdrawal. As a result, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction and the Veteran's appeal as to this issue is dismissed. REASONS FOR REMAND 1. Entitlement to an increased rating for a back disability rated as 20 percent disabling is remanded. After reviewing the evidence of record, the Board finds that remand is necessary to obtain an examination as the examinations/opinions of record are inadequate for adjudicative purposes. Specifically, regarding flare-ups, a December 2014 VA examiner documented that the Veteran reported that flare-ups impact the function of his back and the examiner confirmed that pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the back is used repeatedly over a period of time. However, the examiner concluded that it would be mere speculation to estimate a change in range of motion during a flare-up. Such a finding is contrary to the Court of Appeals for Veterans Claims' (Court) holding in Sharp v. Shulkin. 29 Vet. App. 26 (2017). In Sharp, the Court indicated that, when evaluating musculoskeletal disabilities, Deluca v. Brown, 8 Vet. App. 202 (1995) and its progeny anticipated that VA examiners would need to estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record in addition to examination reports, including lay statements from veterans themselves. 29 Vet. App. at 34-35. The Board notes that in September 2019 a VA clinician also confirmed that the Veteran experienced flare-ups related to his back but did not estimate the functional loss that occurred during flare-ups in degrees of range of motion. Therefore, the increased rating issue is remanded so an examiner can make the necessary flare-up estimates, including from relevant sources of record. Additionally, the Veteran testified during the October 2021 Board hearing that during a flare-up he is unable to stand up straight/is frozen in a half standing position. The Court recently found in Chavis v. McDonough, 34 Vet. App. 1 (2021) that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. Therefore, the Board will also remand the increase rating issue to determine whether the limitation of motion the Veteran experiences is the functional equivalent of favorable or unfavorable ankylosis. 2. Entitlement to an increased rating for left lower extremity radiculopathy rated a 10 percent disabling effective December 18, 2014 is remanded. 3. Entitlement to an increased rating for right lower extremity radiculopathy rated as 10 percent disabling effective December 18, 2014 is remanded. With regard to the claims for entitlement to increased ratings for left lower extremity radiculopathy and right lower extremity radiculopathy, they are inextricably intertwined with the Veteran's claim for an increased rating for his back disability remanded herein as the examination ordered on remand could potentially address such manifestations. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of such claims must be deferred pending the outcome of the claim for an increased rating for his back disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected back disability. If the Veteran is unable to perform ROM testing due to pain, please provide an opinion regarding the below questions, including a retrospective opinion, based on file review only. (a.) Please review the Veteran's testimony regarding inability to run; constant pain; locking and inability to stand up straight; pain affecting his profile; inability to be physically touched; inability to pass an employment agility test; inability to stand, sit, or lay down for any length of time; bone spurring; flare-ups; numbness; and loss of hair on legs. (b.) Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (c.) State whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees or less (the measurement required for the next higher rating). Please explain why or why not. Please estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record, including lay statements from the Veteran, in addition to the examination and examination reports. (d.) State whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less. Please explain why or why not. (e.) Are the criteria for a diagnosis of ankylosis met? (f.) If the criteria for a diagnosis of ankylosis are NOT met, is the limitation of motion the Veteran experiences with pain on use, repetitive use, or during flare-ups the equivalent of favorable ankylosis or unfavorable ankylosis. Please explain why or why not. Please address both favorable and unfavorable ankylosis. (g.) State whether the Veteran's erectile dysfunction is a neurological manifestation of his back disability. Please explain why or why not. (h.) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.