Citation Nr: 22048522 Decision Date: 08/25/22 Archive Date: 08/25/22 DOCKET NO. 17-32 697 DATE: August 25, 2022 ORDER Entitlement to an initial, compensable rating for hydrocele, status post left orchiectomy (claimed as a testicular injury) is dismissed. REMANDED Entitlement to an initial rating in excess of 10 percent for a cervical strain with degenerative arthritis prior to December 15, 2016, and a rating in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for mild degenerative arthritis of the lumbar spine with left lower extremity sciatica prior to December 15, 2016, and a rating in excess of 20 percent thereafter is remanded. Entitlement to a separate, compensable disability rating for left lower extremity sciatica is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT During his February 2022 Board hearing, the Veteran withdrew his claim for entitlement to an initial, compensable rating for hydrocele, status post left orchiectomy. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to an initial, compensable rating for hydrocele, status post left orchiectomy by the Veteran have been 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 in the United States Marine Corps from March 1993 to January 1999 and in the United States Air Force from June 2017 to September 2017. He has additional service in the Marine Corps Reserves and the Air Force National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2014 and July 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. As an initial matter, the Board notes that during the February 2022 Board hearing, the Veteran explained his belief that his service-connected disabilities prevent him from being substantially and gainfully employed and his belief that he is entitled to a TDIU. See February 2022 Board hearing transcript, p. 11, 31. As the Veteran has alleged an inability to engage in substantially gainful employment as part of his increased rating claims on appeal, the issue of entitlement to a TDIU is also before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Board also notes that in a July 2017 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran's cervical and lumbar spine disability ratings to 20 percent, effective December 15, 2016. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for these claims, the claims are still in controversy and on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, because the issue of a separate, compensable rating for the Veteran's left lower extremity sciatica is part and parcel of the Veteran's lumbar spine increased rating claim, this matter is also at issue before the Board. See id. Entitlement to an initial, compensable rating for hydrocele, status post left orchiectomy 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 Veteran or by his or her authorized representative. Id. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. Id. A withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In the present case, at the February 2022 Board hearing, the Veteran withdrew his appeal for entitlement to an initial, compensable rating for hydrocele, status post left orchiectomy. See February 2022 Board hearing transcript, pp 2-3. During the hearing, the undersigned VLJ discussed the issue to be withdrawn and the implications of withdrawing the issue, and the Veteran affirmed that he did not wish to proceed with the appeal on that issue and understood the implications of withdrawing his appeal. See id. As such, the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew the issue of entitlement to an initial, compensable rating for hydrocele, status post left orchiectomy. Accordingly, there remains no allegation of errors of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review this issue and the appeal is dismissed with respect to this matter. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for a cervical strain with degenerative arthritis prior to December 15, 2016, and a rating in excess of 20 percent thereafter; entitlement to an initial rating in excess of 10 percent for mild degenerative arthritis of the lumbar spine with left lower extremity sciatica prior to December 15, 2016, and a rating in excess of 20 percent thereafter; entitlement to a separate, compensable disability rating for left lower extremity sciatica; entitlement to an initial rating in excess of 50 percent for PTSD; and entitlement to a TDIU due to service-connected disabilities A remand is necessary for all the Veteran's claims on appeal in order for the AOJ to issue a Supplemental Statement of the Case (SSOC). In this regard, since issuance of the last Statement of the Case (SOC) in January 2020 regarding the Veteran's increased rating claims for his PTSD and lumbar spine disabilities and last SSOC in July 2017 regarding his increased rating claims for his cervical spine, lumbar spine, and left lower extremity sciatica disabilities, additional VA treatment records, VA examinations, and military records relevant to the issues on appeal have been associated with the Veteran's claims file. As such, in September 2021, a notification letter was sent to the Veteran and his representative at the time informing the Veteran that he had the option to waive AOJ review of the new evidence and have the Board adjudicate his appeal. The notification letter also indicated that if the Veteran did not respond within 45 days from the date of the letter that he wished to waive AOJ review of the new evidence, the appeal would be remanded to the AOJ for initial consideration of the newly associated evidence. In October 2021 correspondence, the Veteran requested that the Board remand his appeal back to the AOJ for review of the additional evidence that was submitted in his appeal. Therefore, the Board must remand the issues on appeal to the AOJ for issuance of an SSOC. Additionally, a remand is also warranted for the Veteran's increased rating claims for his cervical spine, lumbar spine, left lower extremity sciatica, and PTSD as he last underwent VA examinations addressing these disabilities in 2017 and alleged worsening symptoms for these disabilities during the February 2022 Board hearing. The Board notes that VA's duty to assist includes providing a new medical examination when the Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Thus, to ensure that the record includes sufficient medical evidence to properly evaluate the disabilities under consideration, the Board finds that contemporaneous examinations are needed. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, although the Veteran's TDIU claim is being remanded herein for the AOJ to address the issue in an SSOC, as the Veteran has not completed a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), the AOJ should provide the Veteran this form on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records, to include any outstanding non-VA records scanned into VistA Imaging. The last VA treatment of record is dated December 2020. 2. Provide the Veteran with notice of the requirements for entitlement to a TDIU including a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) and invite him to complete and submit the form. 3. Provide the Veteran with another opportunity to submit/identify any outstanding private treatment records relevant to his claims, to include any outstanding psychiatric, physical therapy, and/or chiropractic private treatment records. After obtaining any necessary authorization from the Veteran, all identified, outstanding records should be obtained. 4. Then schedule the Veteran for updated VA back and neck examinations by an appropriate medical professional. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disabilities should be identified. The examiner should respond to the following: (a) Test the Veteran's range of motion for active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, in comparison to the opposite, undamaged joint. (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins if there is any additional loss of range of motion. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up and/or after repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his joint and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation -whether based on lack of expertise, insufficient information, or unprocured testing -of the individual examiner. (e) The examiner is also asked to PROVIDE AN OPINION as to the likelihood that the Veteran's reported headaches are (1) a symptom of the Veteran's service-connected cervical strain disability; (2) a separate/distinct disability that is caused or aggravated by the Veteran's service-connected cervical strain disability; OR (3) a separate/distinct disability that is NOT caused or aggravated by the Veteran's service-connected cervical strain. Any opinions expressed by the VA examiner should be accompanied by rationale. 5. Schedule the Veteran for a VA peripheral nerves examination by an appropriate medical professional to determine the severity of the Veteran's left lower extremity sciatica. The claims file, to include a copy of this Remand, should be made available to and be reviewed by the VA examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. 6. Schedule a VA examination to determine the current severity of the Veteran's service-connected PTSD. The claims file, to include a copy of this Remand, should be made available to and be reviewed by the VA examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD as well as the impact that such has on his social and occupational functioning. 7. Readjudicate the issues on appeal. If the benefits sought remain denied, issue a SSOC and allow the Veteran and his representative an appropriate period of time to respond. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amanda 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.