Citation Nr: 18154416 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-17 964 DATE: November 29, 2018 ORDER The appeal is dismissed with respect to the issue of entitlement to service connection for a low back disability. The appeal is dismissed with respect to the issue of entitlement to service connection for bilateral hearing loss. The appeal is dismissed with respect to the issue of entitlement to service connection for hypertension. The appeal is dismissed with respect to the issue of whether new and material evidence has been received to reopen the claim of service connection for diverticulitis and resulting colostomy. REMANDED Entitlement to a disability rating in excess of 20 percent for postoperative Bristow procedure for recurrent dislocation of the left shoulder is remanded. FINDINGS OF FACT 1. On December 9, 2015, prior to the promulgation of a decision in the appeal, the Veteran’s representative indicated during the Veteran’s hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to service connection for a low back disability. 2. On December 9, 2015, prior to the promulgation of a decision in the appeal, the Veteran’s representative indicated during the Veteran’s hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to service connection for bilateral hearing loss. 3. On December 9, 2015, prior to the promulgation of a decision in the appeal, the Veteran’s representative indicated during the Veteran’s hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to service connection for hypertension. 4. On December 9, 2015, prior to the promulgation of a decision in the appeal, the Veteran’s representative indicated during the Veteran’s hearing before the Board that a withdrawal of this appeal is requested as to the issue of whether new and material evidence has been received to reopen the claim of service connection for diverticulitis and resulting colostomy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran’s representative have been met for the issue of entitlement to service connection for a low back disability. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the Veteran’s representative have been met for the issue of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal by the Veteran’s representative have been met for the issue of entitlement to service connection for hypertension. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal by the Veteran’s representative have been met for the issue of entitlement to service connection for whether new and material evidence has been received to reopen the claim of service connection for diverticulitis and resulting colostomy. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1975 to July 1979. The Veteran testified before the undersigned Veterans Law Judge during a December 2015 hearing. This matter is on appeal from a November 2011 rating decision. Service Connection 1. Low Back Disability 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 his authorized representative. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). On December 9, 2015, during the Veteran’s hearing before the Board, the Veteran’s representative indicated that the Veteran wished to withdraw this appeal for the issue of service connection for a low back disability. Once transcribed as a part of the record of his hearing, this satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran has clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran’s representative’s statement meets the criteria for withdrawal of the appeal for this issue. Because the Veteran has withdrawn this appeal for this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the claim is dismissed. 2. Bilateral Hearing Loss On December 9, 2015, during the Veteran’s hearing before the Board, the Veteran’s representative indicated that the Veteran wished to withdraw this appeal for the issue of service connection for bilateral hearing loss. Once transcribed as a part of the record of his hearing, this satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin, 5 Vet. App. 355. The Veteran has clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran’s representative’s statement meets the criteria for withdrawal of the appeal for this issue. Because the Veteran has withdrawn this appeal for this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the claim is dismissed. 3. Hypertension On December 9, 2015, during the Veteran’s hearing before the Board, the Veteran’s representative indicated that the Veteran wished to withdraw this appeal for the issue of service connection for hypertension. Once transcribed as a part of the record of his hearing, this satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin, 5 Vet. App. 355. The Veteran has clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran’s representative’s statement meets the criteria for withdrawal of the appeal for this issue. Because the Veteran has withdrawn this appeal for this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the claim is dismissed. 4. Diverticulitis and Resulting Colostomy On December 9, 2015, during the Veteran’s hearing before the Board, the Veteran’s representative indicated that the Veteran wished to withdraw this appeal for the issue of whether new and material evidence has been received to reopen the claim of service connection for diverticulitis and resulting colostomy. Once transcribed as a part of the record of his hearing, this satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin, 5 Vet. App. 355. The Veteran has clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran’s representative’s statement meets the criteria for withdrawal of the appeal for this issue. Because the Veteran has withdrawn this appeal for this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the claim is dismissed. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for postoperative Bristow procedure for recurrent dislocation of the left shoulder is remanded. The Veteran was last afforded a VA examination for his service-connected left shoulder disability in January 2015, nearly four years ago. The record thus raises the possibility that the Veteran’s service-connected left shoulder disability might now be more severe than the January 2015 examination report reflects. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected left shoulder disability. The claims file must be made available to the examiner for review in conjunction with the examination. The examiner is to provide a detailed review of the nature and extent of any symptoms of his service-connected left shoulder disability. The examiner should take into account the May 2013 MRI report. (Continued on the next page)   The rationale for any opinion expressed must be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel