Citation Nr: 20046764 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-58 642 DATE: July 13, 2020 ORDER Entitlement to service connection for ankylosis of the neck is dismissed. REMANDED Entitlement to service connection for a right hip disability, claimed as sacroiliitis, is remanded. FINDING OF FACT In March 2020, prior to a Board decision on the issue, the Veteran indicated that he wished to withdraw his appeal of the issue of entitlement to service connection for ankylosis of the neck. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issue of entitlement to service connection for ankylosis of the neck have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1983 to October 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for ankylosis of the neck and a right hip condition, also claimed as sacroiliitis. The Veteran filed a timely notice of disagreement, received by VA in June 2015. In November 2016, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in November 2016. The Veteran was afforded a hearing by videoconference before the undersigned in March 2020. A transcript is in the record. Entitlement to service connection for ankylosis of the neck During his March 2020 Board hearing, the Veteran indicated that he wished to withdraw his appeal with respect to the claim of entitlement to service connection for ankylosis of the neck. The Board may dismiss any appeal that fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal must be made on the record, either in writing or during a hearing. Id.; Acree v. O’Rourke, 891 F.3d 1009, 1012–13 (2018). The Board may accept a claimant’s or representative’s withdrawal of a claim if the withdrawal is explicit, unambiguous, and the claimant has a full understanding of the consequences of withdrawal. Acree, 891 F.3d at 1012–13. In the present case, during the March 2020 Board hearing, the Veteran explicitly and unambiguously indicated that he wanted to withdraw his appeal of the issue of entitlement to service connection for ankylosis of the neck. The Board further finds that the Veteran’s withdrawal was done with a full understanding of the consequences of the withdrawal. As reflected in the transcript, the Veteran stated that he had discussed the decision to withdraw with his representative and that he was choosing to withdraw the appeal of the issue. The undersigned informed the Veteran of the consequences of withdrawing a claim, and the Veteran unambiguously and explicitly affirmed his intent to withdraw the claim for entitlement to service connection for ankylosis of the neck. In light of the fact that the Veteran’s withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action, there remain no allegations of errors of fact or law for appellate consideration with respect to the claim for entitlement to service connection for ankylosis of the neck. Under these circumstances, the issue is no longer within the Board’s jurisdiction and is dismissed. See Acree, 891 F.3d at 1012–13. REASONS FOR REMAND Entitlement to service connection for right hip disability, claimed as sacroiliitis. The Veteran contends that he has a right hip disability, diagnosed as sacroiliitis, that is proximately due to or aggravated by his service-connected traumatic arthritis of the lumbosacral spine. Alternatively, he contends that his current right hip disability was incurred in service as a result of a 1984 rappelling accident during active duty at Fort Hood, Texas. Although the Board regrets the delay, it finds that a remand is necessary to meet VA’s duty to assist. At his March 2020 Board hearing, the Veteran testified that he has been receiving treatment at the Birmingham VA Medical Center for low back and hip pain every three to four months since 2015. He further testified that his VA treatment providers, including his rheumatologist, have advised him that his right hip disability is secondary to his service-connected low back disability. The most recent VA clinical records currently associated with the record, however, are dated in August 2016. In addition, after reviewing the evidence of record, the Board finds that a VA medical opinion is necessary. The Veteran was afforded a VA medical examination in May 2015. The examiner opined that the Veteran’s right hip disability, diagnosed as sacroiliitis, was caused not by the Veteran’s service-connected traumatic arthritis of the lumbosacral spine, but rather by the Veteran’s nonservice-connected ankylosing spondylitis. However, the examiner did not separately consider or explain whether it is at least as likely as not that the Veteran’s service-connected traumatic arthritis of the lumbosacral spine aggravated his current right hip disability. Cf. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Nor did the examiner explain whether the ankylosing spondylitis is a progression of the service-connected traumatic arthritis of the lumbosacral spine, part and parcel of that disability, or could have, itself, been proximately caused or aggravated by the Veteran’s service-connected traumatic arthritis of the lumbosacral spine. Under these circumstances, the opinion is not adequate and must be remedied on remand. The matters are REMANDED for the following action: 1. Obtain records of treatment from the Birmingham VA Medical Center for the period from August 2016 to the present. 2. Provide access to the Veteran’s claims folder to a clinician for the purposes of obtaining a medical opinion as to the nature and etiology of the Veteran’s current right hip disability. The need for an examination is left to the discretion of the clinician. After reviewing the record, and after examining the Veteran if necessary, the clinician should identify the Veteran’s current right hip disability. Then, he or she should provide an opinion, with supporting rationale, as to the following: a) Is it at least as likely as not (50% or greater probability) that the Veteran’s current right hip disability had its inception during his active service or was manifest to a compensable degree within one year of separation? In providing this opinion, the clinician should consider service treatment records documenting multiple episodes of complaints of low back pain, including complaints of radiation to the hips and lower extremities, and notations of positive straight leg testing, an abnormal alignment of the spine, and lumbar scoliosis. b) If not, is it at least as likely as not that the Veteran’s current right hip disability is otherwise causally related to his active service? In providing the requested opinion, the clinician should consider the Veteran’s contention that his right hip disability may be the result of a rappelling accident he sustained in the Summer of 1984. See e.g. Notice of Disagreement, received June 17, 2015. c) If not, is it at least as likely as not (50% or greater probability) that the Veteran’s current right hip disability is proximately due to his service-connected traumatic arthritis of the lumbosacral spine? In providing this opinion, the clinician should consider the clinical evidence of record. He or she should also comment on the whether the Veteran’s currently-diagnosed ankylosing spondylitis is a progression of the service-connected traumatic arthritis of the lumbosacral spine, part and parcel of that disability, or was itself incurred in service or otherwise causally related to aggravated by the service-connected traumatic arthritis of the lumbosacral spine. d) If not, is it at least as likely as not (50% or greater probability) that the Veteran’s current right hip disability was aggravated by his service-connected traumatic arthritis of the lumbosacral spine? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.