Citation Nr: 22017662 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-38 493A DATE: March 25, 2022 ORDER Entitlement to a rating in excess of 30 percent for a total left knee replacement is dismissed. Entitlement to a rating in excess of 30 percent for residuals of a total right knee replacement is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for degenerative disk disease of the lumbar spine with herniated disks is remanded. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On November 8, 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated during his hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to a rating in excess of 30 percent for a total left knee replacement. 2. On November 8, 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated during his hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to a rating in excess of 30 percent for residuals of a total right knee replacement. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a rating in excess of 30 percent for a total left knee replacement. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2021). 2. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a rating in excess of 30 percent for residuals of a total right knee replacement. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from August 1979 to August 1999. The Veteran testified before the undersigned Veterans Law Judge during a November 2021 hearing and a transcript is of record. These matters are on appeal from January 2016 and March 2016 rating decisions. In a March 2020 rating decision, VA granted a temporary 100 percent rating for degenerative disk disease of the lumbar spine with herniated disks from November 18, 2019 to June 30, 2020. Accordingly, the issue of entitlement to an increased rating for degenerative disk disease of the lumbar spine with herniated disks during the period when a temporary 100 percent rating was in effect for degenerative disk disease of the lumbar spine with herniated disks is no longer before the Board. The discussion in this document with regard to the rating for degenerative disk disease of the lumbar spine with herniated disks is not for that time when a temporary total rating was in effect for degenerative disk disease of the lumbar spine with herniated disks. Nothing herein should be taken as affecting that period. During the November 2021 hearing, the Veteran requested a TDIU based in part on his service-connected low back disability. The Board therefore finds that the issue of entitlement to a TDIU has been raised in connection with the claim on appeal for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating 1. Total Left Knee Replacement 2. Residuals of a Total Right Knee Replacement 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 authorized representative. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran's full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55. On November 8, 2021, during his hearing before the Board, the Veteran indicated that he wished to withdraw this appeal for the issues of increased ratings for a left total knee replacement and residuals of a right total knee replacement. Once transcribed as a part of the record of his hearing, this satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). At the hearing, the undersigned explained that the merits of these claims would not be addressed, and that should the Veteran wish to seek increased ratings for the withdrawn issues, a new claim would need to be filed, and that this could impact the effective date assigned for any benefits that were eventually granted. The Veteran has clearly expressed unambiguous intent to withdraw the appeal for these issues. The Board therefore finds that the Veteran's statement meets the criteria for withdrawal of the appeal for these issues. Because the Veteran has withdrawn this appeal for these issues, 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 these issues, and the claims are dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative disk disease of the lumbar spine with herniated disks is remanded. The Veteran was last afforded a VA examination for his service-connected low back disability in June 2018. VA treatment records note that the Veteran has undergone low back surgery twice since that examination, in October 2018 and March 2020. During the November 2021 hearing, the Veteran testified that his range of motion has worsened since his most recent surgery. The record thus raises the possibility that the Veteran's service-connected low back disability could now be more severe than the June 2018 examination report reflects. "Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted." Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. 2. Entitlement to a TDIU is remanded. Because the Veteran contends that he is unemployable in part due to his low back disability, his claim for a TDIU is inextricably intertwined with this remand and the Board cannot fairly proceed in adjudicating the TDIU claim until the low back claim has been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran. The Agency of Original Jurisdiction (AOJ) shall document, in writing, all efforts to obtain these records, to include any formal finding that the records are unavailable. 2. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his service-connected low back disability. The electronic claims file must be made available to the clinician for review, and the examination must reflect that such review has been accomplished. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected low back disability. Although an independent review of the claims file is required, the Board calls the clinician's attention to the October 2018 and March 2020 VA treatment records noting low back surgery and to the Veteran's November 2021 testimony regarding his low back symptoms. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) (Continued on the next page) 4. Then, readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.