Citation Nr: 1805131 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-00 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for gallstones. 3. Entitlement to service connection for a cervical spine disability, including degenerative disc disease. 4. Entitlement to service connection for paralysis of the right lower extremity. 5. Entitlement to service connection for paralysis of the right arm. 6. Entitlement to a compensable initial evaluation for arteriovenous fistula embolization right lower lobe, status post-surgical repair (fistula). 7. Entitlement to a compensable initial evaluation for migraine headaches. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1981 to January 1986, from August 1990 to September 1991, and from February 2004 to June 2007. This case comes to the Board of Veterans' Appeals (Board) on appeal from July 2008 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2016, the Board remanded the claim for additional development. It has returned to the Board for further appellate review. For clarification purposes, the Board notes that the Veteran's representative submitted an October 2017 statement indicating that the issues of entitlement to a compensable initial rating for a fistula and migraine headaches has been granted, and the issue of entitlement to service connection for gallstones has been withdrawn. However, the record does not reflect such grants as the disability ratings assigned for service-connected fistula and migraine headaches are 0 percent. The Board's determination regarding the issues remaining on appellate status occurred after careful consideration of the evidence, to include an April 2016 statement from the Veteran (which the Board determines is not an adequate withdrawal) and subsequent attempts to clarify the issues on appeal with the Veteran and her representative. Therefore, except the service connection claim for gallstones dismissed herein, the issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In an October 2017 written statement, the Veteran's representative indicated that the Veteran withdrew the appeal for entitlement to service connection for gallstones. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to service connection for gallstones have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Withdrawal 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 her authorized representative. Id. In the present case, in an October 2017 written statement, the Veteran's representative indicated that the issue of entitlement to service connection for gallstones has been withdrawn, prior to promulgation of an appellate decision. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. ORDER The appeal as to the issue of entitlement to service connection for gallstones is dismissed. REMAND The record suggested that the Veteran wished to withdraw the claims on appeal as an April 2016 VA examination report notes that the Veteran did not want an examination conducted and also notes that the Veteran" tried calling and writing letter to have claim withdrawn", and made the following statements: she "no longer has any health issues and therefore does not want to be dishonest by claiming any"; and "since 2013, she has been healthy without any of the above medical issues." However, the Veteran's representative submitted an October 2017 written statement, in which he indicated that the increased rating claims were granted, service connection for gallstones was withdrawn, and the other issues remained on appeal. The Veteran has not submitted a written withdrawal of the other claims and on the record before it the Board must consider these issues to remain in appellate status until such a withdrawal is submitted. As the record does not indicate grants for the increased rating claims, and it appears that the Veteran's current intent is to continue the appeal for the other stated issues, remand is required for additional development. In light of the remand, updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Upon completion of directive #1, schedule the Veteran for a VA examination to determine the whether any low back and cervical spine disorders are related to her military service. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, including her in-service treatment for complaints of low back and neck pain in early 2007; post service MRI examination findings of mild spondylosis at C4-C5 and C5-C6, moderate left and posterolateral C4-C5 chronic disc protrusion causing lateral recess and foraminal stenosis in January 2008; post service MRI examination findings of L4-L5 disc herniation on the right in January 2010; the February 2008 and June 2012 VA examinations of the spine; and with consideration of the Veteran's statements, the examiner must separately identify each low back and cervical spine disorder previously or currently diagnosed; and for each low back and cervical spine disorder identified, the examiner must indicate whether it was at least as likely as not caused or aggravated by the Veteran's military service. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Upon completion of directive #1, schedule the Veteran for a VA examination to determine whether any nerve-related disabilities of the right upper and right lower extremities are related to her military service. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, including her in-service treatment for complaints of right upper extremity numbness and pain radiating down into her right leg; the June 2007 in-service treatment report listing a diagnosis of subacute sensory neuropathy; a February 2007 in-service treatment report noting a diagnosis of low back pain radiating down into the right leg; February 2008 post service electromyography examination listing a diagnosis of right sensory neuropathy; February 2009 VA treatment report noting a diagnosis of sciatica and paresthesia into the right hip and thigh; the June 2012 VA examination of the peripheral nerves, and with consideration of the Veteran's statements, the examiner must separately identify each nerve-related disability of the right upper and right lower extremities previously or currently diagnosed; and for each disability identified, the examiner must indicate whether it was at least as likely as not caused or aggravated by the Veteran's military service; and if not, whether it was at least as likely as not caused or aggravated beyond its normal course by the Veteran's service-connected disabilities. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. Upon completion of directive #1, schedule the Veteran for VA examinations to determine the current severity of her service-connected arteriovenous fistula embolization right lower lobe, status post-surgical repair, and her migraine headaches. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings necessary to rate each of these disabilities must be reported in detail. 5. The RO must notify the Veteran that it is her responsibility to report for all examinations scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to her last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 6. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be adjudicated, including consideration of all evidence received since the most recent statement of the case was received. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs