Citation Nr: 18157101 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-08 624 DATE: December 11, 2018 ORDER The appeal concerning the issue of entitlement to service connection for a left shoulder disability is dismissed. The appeal concerning the issue of entitlement to service connection for a right shoulder disability is dismissed. REMANDED Entitlement to a compensable rating for degenerative arthritis of the cervical spine prior to December 21, 2011, and in excess of 20 percent thereafter is remanded. FINDINGS OF FACT 1. In November 2018, prior to the promulgation of a decision, the Veteran submitted a written statement expressing his intent to withdraw the issue of entitlement to service connection for a left shoulder disability. 2. In November 2018, prior to the promulgation of a decision, the Veteran submitted a written statement expressing his intent to withdraw the issue of entitlement to service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal to the issue of entitlement to service connection for a left shoulder disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal to the issue of entitlement to service connection for a right shoulder disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1982 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Notably, during the pendency of this appeal, a January 2015 rating decision increased the Veteran’s noncompensable cervical spine disability rating to 20 percent. Thus, the issue has been recharacterized accordingly. Withdrawal 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or by his or her authorized representative. Id. In November 2018, the Veteran submitted a written statement specifically expressing his wish to withdraw his appeal as to the issues of entitlement to service connection for a left shoulder disability and a right shoulder disability. See November 2018 VA Form 21-4138, Statement in Support of Claim. Accordingly, he has withdrawn the appeal as to these issues and, hence, there remains no allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. Accordingly, the Board does not have jurisdiction to review the appeal on these issues and they are dismissed. REASONS FOR REMAND 3. Entitlement to a compensable rating for degenerative arthritis of the cervical spine prior to December 21, 2011, and in excess of 20 percent thereafter is remanded. The Veteran was afforded VA examinations in connection with his service-connected cervical spine disability in January 2013 and November 2014. These examinations do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) (the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Accordingly, an updated VA examination consistent with the requirements set forth by Correia, as well as Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), considering the Veteran’s reports of flare-ups, is warranted on remand. Any outstanding VA and private treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his cervical spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed, with all findings reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In assessing functional loss, please also provide an opinion describing functional impairment of the Veteran’s neck due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (Continued on the next page)   A complete rationale shall be given for all opinions and conclusions expressed. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel