Citation Nr: 19190868 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-57 490 DATE: December 3, 2019 ORDER The issue of entitlement to service connection for traumatic brain injury (TBI) is dismissed. Entitlement to service connection for lower back condition is granted. FINDINGS OF FACT 1. During his Board hearing, the Veteran asked that the claim for entitlement to service connection for TBI be withdrawn. 2. The evidence is in equipoise as to whether the Veteran’s current lower back condition arose in service or is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for TBI by the Veteran have been met. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2018). 2. The criteria for entitlement to service connection for lower back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. 1. Entitlement to service connection for traumatic brain injury (TBI) 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. Id. During the Veteran’s September 2019 hearing, he expressed his desire to withdraw the appeal concerning the claim for entitlement to service connection for TBI. As the Veteran has withdrawn the appeal on this issue, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on this issue and the appeal is dismissed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 2. Entitlement to service connection for lower back condition The Veteran seeks service connection for a lower back condition, which he claims was caused by an in-service “jump injury”. In a September 2019 Board hearing, the Veteran testified that he injured his back as a result of a parachute accident. As an initial matter, the Board finds the Veteran has a current low back disability, because he was diagnosed with degenerative arthritis of the spine during his May 2015 VA examination. The Veteran’s active duty service treatment records are absent of complaints of or treatment for a low back disability. However, during the Veteran’s January 1994 separation examination, he reported a back injury occurred in 1980. Given that he did not make the same report during his entrance examination, the Board will accept that the Veteran injured his back during service. Thus, the question for the Board is whether the current lower back condition is related to service. The Board notes there are conflicting medical opinions of record. A May 2015 VA examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner stated that the degenerative changes to the thoracic and lumbar spine are not unusual for a 56-year-old and thus are as least as likely as not a residual of the natural aging process and are less as likely as not a residual of or related to military service or exposures while in military service. In October 2019, the Veteran’s treating clinician opined that the Veteran’s lower back disability is at least as likely as not the result of or related to his miliary service. The clinician noted the Veteran’s oral history of no previous spinal complaint before his military incident of a parachute deployment malfunction in service and provided the rationale that it is incredibly likely that the Veteran suffered disc lesions at multiple levels as a result of the compressive force at impact. This clinician has been treating the Veteran for three years, and indicated he reviewed the Veteran’s service treatment records and post-service treatment records to reach his conclusion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lower back disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lower back condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.