Citation Nr: 1302303 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-14 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a left shoulder injury. 2. Entitlement to service connection for residuals of a closed head injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, MO. The issue of entitlement to residuals of a closed head injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In an October 2012 letter, prior to the promulgation of a decision in the present appeal, the appellant withdrew his Substantive Appeal with respect to the issue of entitlement to service connection for a left shoulder injury. CONCLUSION OF LAW With respect to the issue of entitlement to service connection for entitlement to service connection for a left shoulder injury, the criteria for withdrawal of the Veteran's substantive appeal have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his authorized representative. See 38 C.F.R. § 20.204 (2012). As reflected in the record, in an October 2012 letter, the appellant through his representative withdrew his appeal with respect to the claim of entitlement to service connection for a left shoulder injury. There remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and it is therefore dismissed. ORDER The appeal is dismissed with respect to the claim of entitlement to service connection for a left shoulder injury. REMAND The Veteran seeks service connection for residuals of a close head injury (CHI). The Veteran was a boxer with the Eighth Army's Korea Boxing Team in 1969 and 1970. Since that time, he states that he has had chronic headaches. The Veteran, through his representative states that as a result of the head injuries incurred in service, he also has short term memory loss and speech difficulties. See Informal Hearing Presentation, dated January 9, 2013. Service treatment records are silent for any complaints, treatment, or diagnoses of a chronic disability due to a closed head injury. They do not show any problems with headaches, short-term memory loss, or speech impediment. An October 1970 discharge examination report notes that the Veteran denied a history of frequent or severe headaches, dizziness, history of head injury, or loss of memory or periods of unconsciousness. The report, however, did note that the Veteran reported being hit in the head while playing football 5-6 months ago which was followed by tinnitus, no sequelae. Given the foregoing, the Veteran's assertion that he had head trauma in service must be accepted. Thus, the question becomes whether the Veteran has a chronic disability due to the head injuries in service. In August 2012, the Veteran underwent a VA "Traumatic Brain Injury" examination. The examiner did not address the medical questions necessary to adjudicate the claim of service connection. She stated that the Veteran did not have a TBI and noted that the Veteran had not been "knocked out" in service. A complete and probative rationale was not provided. In this regard, the examiner did not acknowledge the Veteran's complete boxing history or his history of a head injury while playing football. As such, another VA examination and opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA brain injury examination with an appropriate professional (physiatrist, psychiatrist, neurosurgeon or neurologist, or a generalist clinician who has successfully completed the CPEP (now DEMO) TBI training module), other than the previous (August 2012) VA examiner for the specific purpose of ascertaining whether the Veteran has any current residuals of a closed head injury. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted, to include, if appropriate, a CAT and/or MRI scan. After reviewing the claims file, including a copy of this remand, and examining the Veteran, the examiner should address the following: a. State whether the Veteran has a chronic disability due to a closed head injury. If so, identify the chronic residual disability. b. If a chronic disability due to a closed head injury is found state whether it is at least as likely as not (a 50 percent probability or greater) that such disability is due to service, including boxing or the head injury sustained while playing football. c. The examiner should also comment on whether it is at least as likely as not (there is a 50 percent probability or greater) that the Veteran has a chronic disability, including a TBI, due to a prolonged period of sustained blows to the head as a result of boxing or due to the head injury sustained while playing football. In offering any opinion, the examiner should consider all the evidence of record, to include medical records as well as the Veteran's lay statements. In this regard, the examiner should address the Veteran's complaints of headaches, impaired spatial orientation, speech impediment, and impaired memory, attention, concentration and executive functions. The examiner should also note the Veteran's history given during his October 1970 service discharge examination in which he denied a history of frequent or severe headaches, dizziness, loss of memory or periods of unconsciousness. The examiner should also take into consideration the Veteran's history of being a boxer and sustaining a head injury while playing football. All opinions expressed should be accompanied by clear supporting rationale consistent with the evidence of record. The claims file must be reviewed in conjunction with the examination. 2. Upon completion of the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs