Citation Nr: 1313067	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  09-35 845	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an increased rating for lumbar spine disc herniation at L4-L5 and L5-S1, currently evaluated as 40 percent disabling.

2.  Entitlement to service connection for cervical spine disability.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from February 1982 to February 1986 and from April 1986 to September 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2007 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA).  Notices of disagreement were received in July 2007 and April 2008, statements of the case were issued in July 2009, and substantive appeals were received in September 2009.  Ratings of 10 percent have been assigned to lumbar spine disc herniation at L4-L5 and L5-S1 prior to February 24, 2011, and 40 percent from February 24, 2011.

The Veteran presented testimony during a videoconference hearing before the undersigned Veterans Law Judge of the Board in November 2012, and a transcript of the hearing is associated with his claims folder.  

The issue of service connection for cervical spine disability 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

During the Veteran's November 2012 hearing, he effectively withdrew his appeal on the issue of the ratings assigned for his service-connected lumbar spine disc herniation at L4-L5 and L5-S1.



CONCLUSION OF LAW

The criteria for withdrawal of the issue of an increased rating for lumbar spine disc herniation at L4-L5 and L5-S1 have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5). (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

During the Veteran's November 2012 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his appeal concerning the ratings assigned for his service-connected lumbar spine disc herniation at L4-L5 and L5-S1.  

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 on the record during a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  With regard to the issue withdrawn by the Veteran, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed.

No assistance or notice under 38 U.S.C.A. Chapter 51 (West 2002) is necessary for the claim since the appeal has been withdrawn.


ORDER

The appeal on the issue of the ratings assigned for lumbar spine disc herniation at L4-L5 and L5-S1 is dismissed.



REMAND

The Veteran seeks service connection for cervical spine disability, either on a direct or secondary basis, the latter being as secondary to his service-connected left shoulder degenerative changes and bursal surface partial tear of the supraspinatus tendon.  Secondary service connection was first raised during the Veteran's November 2012 hearing, and VCAA secondary service connection notice has not been provided.  

Service treatment records show treatment for neck pain in November 1987 and December 2003, and for complaints of armpit and arm numbness in August 2000.  Shortly post-service in November 2006, the Veteran was seen privately for neck radiculopathy symptoms.  On December 2006 VA examination, chronic cervical strain was diagnosed.  On January 2007 VA examination, cervical spine X-rays and electromyography were normal and the diagnosis was cervical strain per history only.  

The Veteran was seen privately shortly thereafter in January 2007, and again March 2007, for check-up of his neck and arm pain, and it was reported that he had suspected radicular symptoms.  On private MRI in October 2007, for radiculopathy, lateral spurs were found at C3-4 with mild encroachment into the neural foraminal zones bilaterally.  There was also a focal right paracentral extruded herniation at C5-6.  It completely effaced the right paracentral ventral subarachnoid space and slightly displaced the cord dorsally.  There was mild encroachment into the right subarticular and foraminal zones, and there was mild central stenosis.  

Testimony regarding in-service and post-service symptoms was provided by the Veteran during his November 2012 hearing. 

Since the Veteran had neck symptoms in service and has a service-connected left shoulder disability, and since there is now evidence of a current cervical spine disability, a VA examination with nexus opinions on the matters of direct and secondary service connection is necessary under 38 C.F.R. § 3.159 (2012).  Beforehand, however, the Veteran should be furnished with VCAA secondary service connection notice, and any additional treatment records he has received since February 2008, the date of the most recent treatment record contained in the claims folder, should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with VCAA secondary service connection notice concerning this claim, and make arrangements to obtain any additional medical records of treatment the Veteran has received for cervical spine disability since February 2008.  

2.  After the above is completed, the Veteran should be scheduled for an appropriate VA examination with regard to cervical spine disability.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  All current disabilities of the cervical spine should be clearly reported. 

After reviewing the claims file and examining the Veteran, the examiner should respond to the following:

     a)  Is it at least as likely as not (a 50% or higher degree of probability) that any current cervical spine disability is causally related to service, including the neck pain and armpit/arm numbness symptoms noted in November 1987, August 2000, and December 2003?

     b)  Is it at least as likely as not (a 50% or higher degree of probability) that any current cervical spine disability is proximately due to or caused by the service-connected left shoulder disability?

     c)  Is it at least as likely as not (a 50% or higher degree of probability) that any current cervical spine disability has been aggravated by the service-connected left shoulder disability?

The examiner should furnish reasons for the opinions. 

3.  Thereafter, the RO should review the expanded record and undertake a merits analysis of the claim, considering in the first instance the matter of secondary service connection for cervical spine disability.  If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for appellate review.

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).

______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs