Citation Nr: 1803882 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-04 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a low back disorder. Entitlement to service connection for a left elbow disorder. Entitlement to a disability rating in excess of 20 percent for a left ulnar nerve injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from April 1965 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2011 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The September 2011 rating decision continued the 20 percent disability rating for the left ulnar nerve injury and denied service connection for a low back disorder. The August 2012 rating decision denied service connection for a left elbow disorder. The issues of entitlement to an increased rating for the left ulnar nerve injury and service connection for a left elbow disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT In May 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the issue of entitlement to service connection for a low back disorder is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant regarding the issue of entitlement to service connection for a low back disorder have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, through his authorized representative, withdrew his claim of entitlement to service connection for a low back disorder in a May 2017 statement. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and the appeal is dismissed. ORDER The claim of entitlement to service connection for a low back disorder is dismissed. REMAND The Veteran most recently underwent a VA examination to assess the severity of his service-connected left ulnar nerve injury in August 2012. In February 2014, the Veteran stated that his left ulnar nerve injury continued to worsen. A new VA examination is necessary when there is evidence that a service-connected disability has worsened since the last examination. Therefore, given that there is an indication that the Veteran's disability may have increased in severity since the most recent VA examination over five years ago, the Board finds that a new VA examination is needed to determine the current severity of the Veteran's service-connected left ulnar nerve injury. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). With respect to the Veteran's claimed left elbow disorder, the Veteran was provided a VA examination in August 2012. The VA examiner diagnosed left ulnar neuropathy s/p nerve compression of the left elbow. The Veteran reported that his left elbow was already service-connected and that he injured his left elbow in a 1964 fall, which resulted in neuropathy of the left third, fourth, and fifth fingers. His left elbow symptoms included total numbness and tingling going down to his left small, ring, and middle fingers. He also reported weakened grip. The examiner noted that the Veteran was struck by a car in June 1966, which resulted in a contusion of the left ulnar nerve at the elbow. The examiner also noted that February 2011 VA treatment records showed that there was no acute fracture, dislocation, or significant degenerative joint disease of the left elbow. March 2013 VA treatment records included an assessment of cervical radiculopathy vs. elbow tendonitis. A March 2011 VA orthopedic consult indicated small osteophyte at the lateral epicondyle. In August 2012 he was treated for left elbow olecranom bursitis. Based on the above, the examiner concluded that the Veteran's elbow disorder was less likely as not proximately due to or the result of the Veteran's service-connected disorder. The examiner stated that the Veteran was already service connected for his left ulnar neuropathy due to compressed nerve of the left elbow following a fall. Based on the Veteran's description of his elbow disorder and the clinical findings, the Veteran's left elbow disorder was related to and caused the service-connected ulnar neuropathy, but that his ulnar neuropathy did not cause his left elbow disorder. The Board finds that the August 2012 VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Initially, the Board notes that the Veteran is service connected for a left ulnar nerve injury. The only diagnosis in the diagnosis section of the examination report was left ulnar neuropathy. However, the examiner referenced treatment records suggesting diagnoses of arthritis, elbow tendonitis, and olecranom bursitis. The examiner's opinion stated that his left elbow disorder caused his ulnar neuropathy, but that the ulnar neuropathy did not cause his left elbow disorder. It is not clear what left elbow diagnosis the examiner used to form the opinion and whether the left elbow symptoms represent a diagnosis separate from his service-connected left nerve injury. Additionally, the examiner did not provide an opinion as to whether the left elbow disorder was directly related to service, to include the in-service accident. Accordingly, the Board finds that another VA examination is required to determine whether the Veteran has a left elbow diagnosis separate from his service-connected left ulnar nerve injury, and, if so, whether the left elbow disorder is related to service or a service-connected disorder. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA treatment records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected left ulnar nerve injury. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO must ensure that all information required for rating purposes is provided. 3. Thereafter, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's claimed left elbow disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must address the following: (a) The VA examiner must identify all left elbow disorders present during the period of the claim. The examiner should determine whether the Veteran has a left elbow disorder separate from his service-connected left ulnar nerve injury. (b) With respect to each such disorder the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during his period of active service or is otherwise etiologically related to his active service. (c) With respect to each such disorder the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder was caused by his service-connected disorders, to include his left ulnar nerve disorder. (d) With respect to each such disorder the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder was permanently worsened by his service-connected disorders, to include his left ulnar nerve disorder. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 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 2014). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs