Citation Nr: 18153606 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-59 212 DATE: November 28, 2018 ORDER Entitlement to service connection for bronchitis is dismissed. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDING OF FACT On August 9, 2017, the Veteran submitted a written statement that clearly expressed her intent to withdraw the claim for entitlement to service connection for bronchitis. CONCLUSION OF LAW The criteria for withdrawal of the appeal for the issue of entitlement to service connection for bronchitis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1980 to April 1993. The Veteran also had additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Entitlement to service connection for bronchitis 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 a Veteran or by his or her authorized representative. Id. In a communication dated August 2017 prior to the promulgation of a decision in the appeal, the Veteran stated that she wished to withdraw the bronchitis claim that was pending on appeal. Thus, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran contends that her low back condition was due to a motor vehicle accident that occurred when she was travelling home after her National Guard weekend drill. Subsequently, the Board notes that the Veteran submitted evidence that the motor vehicle accident occurred on the date that she attended her unit’s weekend training date. The Board acknowledges that injuries incurred proceeding directly to or returning directly from active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) shall be deemed to have been incurred in service. 38 U.S.C. § 106 (d)(1); 38 C.F.R. § 3.6(e). Moreover, in order to determine whether the Veteran was disabled from an injury while returning directly from INACDUTRA, consideration should be given to “the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death.” 38 C.F.R. § 3.6(e). Therefore, the Board preliminarily finds that the Veteran’s motor vehicle accident occurred while proceeding home after her National Guard unit’s inactive duty for training. After a review of the record, the Board notes that the Veteran was not afforded a VA examination for this issue. However, the Board finds that a VA examination is necessary in order to decide this claim. In disability compensation claims, the VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability ,but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet App. 79 (2006). Accordingly, the Board finds that the elements of McLendon are satisfied because the Veteran has a present disability, the Veteran was involved in a motor vehicle accident following her unit’s weekend drill, she attributes her in-service motor vehicle accident to her present disability, and there is insufficient evidence to decide this case. Thus, for the above stated reasons, a remand is required to afford the Veteran a VA examination for this issue. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from August 1, 2017, to the present. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s low back disorder. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: (A). Identify all low back disorders that are currently present. (B). Is it at least as likely as not (50 percent probability or greater) that the Veteran’s low back disorder, had its onset in service or is caused by or related at least in part to her active service? (C). Is it at least as likely as not that the Veteran’s low back disorder is due to her motor vehicle accident that occurred during her unit’s weekend training? In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms she has experienced. In providing the requested opinions, the examiner cannot rely exclusively on the absence of relevant treatment in the Veteran’s medical history. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel