Citation Nr: 1754185
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 08-02 925 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Entitlement to an increased evaluation for a right knee condition with mild degenerative changes, currently evaluated as 10 percent disabling.

2. Entitlement to an increased evaluation for left knee arthralgia, currently evaluated as 10 percent disabling.

3. Entitlement to an increased evaluation for right lower extremity radiculopathy, currently evaluated as 10 percent disabling.

4. Entitlement to an earlier effective date prior to July 19, 2007 for service connection for a right lower extremity radiculopathy.

5. Entitlement to an increased evaluation for residuals of a right ankle fracture, currently evaluated as 30 percent disabling.

6. Entitlement to an increased evaluation for myofascial lumbar pain, currently evaluated as 20 percent disabling.

7. Entitlement to eligibility for automobile or adaptive equipment.

8. Entitlement to a total disability evaluation based on a total disability evaluation based on individual unemployability.

REPRESENTATION

Veteran represented by: Paralyzed Veterans of America, Inc.

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

L.J. Bakke, Counsel

INTRODUCTION

The Veteran served on active duty from June 8, 1972 to June 30, 1972 and from September 1975 to December 1995.

This appeal arises before the Board of Veterans Appeals (Board) from February 2007 and July 2008 rating decisions rendered by a Department of Veterans Affairs (VA) Regional Office (RO).

The issues were previously remanded by the Board in December 2011.

In April 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

The Veteran and his representative raised the issue of entitlement to a TDIU during the April 2016 hearing, attesting that his service-connected disabilities had rendered him unemployable. In addition, the Veteran testified that the Social Security Administration (SSA) had found him disabled as the result of his service-connected musculoskeletal disabilities. Accordingly, the VLJ accepted this testimony as a claim for TDIU and the issue has been added to this appeal, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue has been added to those on the front pages of this decision.

The issues of increased evaluations for residuals of a right ankle fracture, myofascial lumbar pain; entitlement to eligibility for automobile or adaptive equipment; and entitlement to a TDIU being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDING OF FACT

In April 2016, after these issues were certified to the Board but prior to the promulgation of a decision in them, the Veteran withdraw his claims on appeal before the Board as to the issues of entitlement to increased evaluations for a right knee condition with mild degenerative changes, currently evaluated as 10 percent disabling; left knee arthralgia, currently evaluated as 10 percent disabling; and right lower extremity radiculopathy, currently evaluated as 10 percent disabling; and for an earlier effective date prior to July 19, 2007 for service connection for a right lower extremity radiculopathy.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal as to an increased evaluation for a right knee condition with mild degenerative changes greater than 10 percent disabling have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

2. The criteria for withdrawal of the appeal as to an increased evaluation for left knee arthralgia greater that 10 percent disabling have been met. 38 U.S.C §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

3. The criteria for withdrawal of the appeal as to an increased evaluation for right lower extremity radiculopathy greater than 10 percent disabling have been met. 38 U.S.C §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

4. The criteria for withdrawal of the appeal as to an effective date earlier than July 19, 2007 for service connection for a right lower extremity radiculopathy have been met. 38 U.S.C §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The claimant or the claimant’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a) (2017). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1) (2017). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3) (2017). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c) (2017).

The Board may dismiss any appeal which fails to allege a specific error of fact or law. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.202 (2017). There is no obligation to proceed with further adjudication following withdrawal. Hanson v. Brown, 9 Vet. App. 29 (1996).

In April 2016, the Veteran and his representative appeared before the undersigned VLJ and gave testimony as to these issues. The Veteran testified that he wished to withdraw the issues as to increased evaluations for a right knee condition with mild degenerative changes greater than 10 percent, left knee arthralgia greater that 10 percent disabling, and right lower extremity radiculopathy greater than 10 percent; and as to an effective date earlier than July 19, 2007 for service connection of service connection of right lower extremity radiculopathy. See April 2016 Board Hearing Transcripts, p. 2.

Once an appeal was properly withdrawn, the Board had no jurisdiction remaining over it.

The Board finds that there remain no allegations of errors of fact or law for appellate consideration for the claims of (1) an increased evaluation for a right knee condition with mild degenerative changes greater than 10 percent, (2) an increased evaluation for left knee arthralgia greater that 10 percent disabling, (3) an increased evaluation for right lower extremity radiculopathy greater than 10 percent, and (3) an effective date earlier than July 19, 2007 for service connection of right lower extremity radiculopathy. There remain no allegations of errors of fact or law for appellate consideration for these claims, and dismissal of these claims is appropriate.

Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. 38 C.F.R. § 20.204 (2017).

ORDER

The appeal as to entitlement to an evaluation greater than 10 percent for right knee with mild degenerative changes is dismissed.

The appeal as to entitlement to an evaluation greater than 10 percent for left knee arthralgia is dismissed.

The appeal as to entitlement to an initial evaluation greater than 10 percent for right lower extremity radiculopathy is dismissed.

The appeal as to entitlement to an effective date earlier than July 19, 2007 for the grant of service connection for right lower extremity radiculopathy is dismissed.

REMAND

The Veteran argues that his service-connected right ankle and lower back disabilities are worse than have been evaluated and, specifically, that they have worsened since the last 2015VA examination conducted to evaluate these disabilities. See Transcripts, pp. 4, 7.

Specifically, the Veteran testified that his loss of range of motion in his right ankle more nearly approximates that of a fused joint, and that this disability would be more properly evaluated as loss of the entire foot. See Transcripts, pp. 4-7. An increase in the evaluation for right ankle disability would also make the Veteran eligible for a grant of automobile or adaptive equipment. Concerning his lower back disability, the Veteran and his representative observed that current medical evidence reflects loss of range in lumbar spine flexion motion measuring zero to 20, which the examiner noted would warrant the next higher evaluation. See Id., p. 7. With regard to the TDIU claim, the Veteran stated that his supervisor found him unable to perform the duties required of him at his place of employment, and he had to quit after 26 years of service. He filed a claim with SSA and was granted disability benefits effective in June 2015. See Id., p. 8-9.

In addition, the Veteran and his representative argue that the Veteran’s right ankle disability was not evaluated properly prior to the ankle fusion, which was accomplished in 2011, and that the right ankle injury that occurred on the job in 2011 (and which resulted in the surgery that fused the ankle) was the result of the service-connected injury. See Transcripts, pp. 15

The Board observes that the Veteran presents a mixed disability picture in that his bilateral lower extremities are impacted by both his right ankle disability, and neurological problems associated with the lower back disability. Given the Veteran’s testimony and medical records recently received from SSA-obtained after the most recent 2015 VA examinations, the Board finds must remand is appropriate to allow medical examiners the opportunity to further review the entire record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Accordingly, the case is REMANDED for the following action:
1. Develop the claim for TDIU.

2. Obtain all relevant VA treatment records since the last time VA records were added to the claims file.

3. After the development in #2 has been completed, schedule the Veteran for examinations to evaluate the current severity of his service-connected residuals of a right ankle fracture and lumbar spine disability. The impact of these disabilities on his ability to maintain and obtain gainful employment should be discussed.

The examiner is asked to differentiate the symptomatology attributed to the residuals of his right ankle fracture and lumbar spine disability from any non-service connected disabilities.

The claims folder and this remand must be made available to the examiners for review, and the examination reports should reflect that such a review was accomplished. All studies deemed appropriate shall be performed, and all findings shall be set forth in detail. A complete rationale for all opinions is required, and the examiners must indicate that he or she reviewed the claims file.

4. After ensuring that the requested development is completed and conducting any other development deemed necessary, the AOJ should re-adjudicate the claims for increased evaluations for residuals of a right ankle fracture, myofascial lumbar pain, and entitlement to automobile or adaptive equipment, and a TDIU. If the claims remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and given an opportunity to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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