Citation Nr: 18157854 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-37 355 DATE: December 13, 2018 ORDER The request to reopen the issue of entitlement to service connection for sleep apnea is dismissed. REMANDED Entitlement to an initial evaluation in excess of 10 percent disabling for right hip trochanteric bursitis is remanded. The request to reopen the issue of entitlement to service connection for degenerative spine disease (lumbar degenerative disc disease (DDD) with severe spinal stenosis), claimed as chronic low back pain, is remanded. The request to reopen the issue of entitlement to service connection for cervical DDD with spondylosis, claimed as upper back pain, is remanded. FINDING OF FACT On November 28, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his authorized representative, that a withdrawal of the appeal for entitlement to service connection for sleep apnea is requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to June 1991, in April 1997, from February 2003 to May 2003, and from April 2007 to May 2008. In November 2018, the Veteran appeared before the undersigned Veterans Law Judge at a travel board hearing. The Board will defer adjudication of the requests to reopen until outstanding records are obtained. Withdrawal The request to reopen the issue of entitlement to service connection for sleep apnea is dismissed. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Board acknowledges, except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b)(1). Here, the withdrawal was made on the record at a November 2018 hearing before the undersigned with the Veteran’s representative present. A transcript of the hearing will serve as written documentation of the withdrawal. The Veteran’s representative was present at the hearing and withdrawal was confirmed. In addition, the undersigned informed the Veteran that the withdrawal results in dismissal of the issue on appeal without prejudice. The Veteran was informed that the issue may be brought again and reopened, if he provides new and material evidence. The Veteran and his representative participated in a meaningful manner in the hearing. Therefore, the Board concludes that the Veteran understood the consequences of the withdrawal at the time of the hearing. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal for entitlement to service connection for sleep apnea. Therefore, this issue is dismissed without prejudice. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent disabling for right hip trochanteric bursitis is remanded. 2. The request to reopen the issue of entitlement to service connection for degenerative spine disease (lumbar DDD with severe spinal stenosis), claimed as chronic low back pain, is remanded. 3. The request to reopen the issue of entitlement to service connection for cervical DDD with spondylosis, claimed as upper back pain, is remanded. The Board finds that additional development is needed prior to final adjudication of the remaining issues on appeal. First, based on testimony given at the hearing, the Board finds that there are outstanding VA treatment records that must be obtained and associated with the claim file. In addition, the Board finds that the Veteran should be scheduled for a new VA examination regarding his request for an increased rating for his service-connected right hip trochanteric bursitis. At the hearing, the Veteran indicated that his symptoms for this disability have worsened since his last VA examination. Under these circumstances, VA cannot rate the service-connected disability without further medical clarification. Hence, the Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination in order to determine the current severity of his service-connected right hip trochanteric bursitis. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel