Citation Nr: 21004529 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-13 000 DATE: January 27, 2021 ORDER The appeal for entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease with degenerative arthritis is dismissed. REMANDED Entitlement to service connection for a neurocognitive disorder, to include Alzheimer’s disease, on a direct basis or as secondary to service-connected traumatic brain injury (TBI), is remanded. FINDING OF FACT In December 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of the appeal for entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease with degenerative arthritis was requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease with degenerative arthritis by the Veteran’s authorized representative have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1963 to July 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in January 2012 and February 2014. In May 2018, the Board remanded this matter for additional development. The Board is cognizant that the agency of original jurisdiction (AOJ) included the issue of entitlement to service connection for headaches on the August 2020 SSOC. However, the AOJ clearly granted entitlement to service connection for TBI (previously claimed as headaches, head injury, and brain contusion) in an August 2020 rating decision and that issue is no longer on appeal before the Board. 1. Entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease with degenerative arthritis 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. The Veteran submitted a substantive appeal pertaining this issue in April 2015. In a December 2020 statement, the Veteran, through his attorney, specifically indicated that he was withdrawing the appeal for entitlement to an evaluation in excess of 20 percent for his service-connected lumbar spine disability. The Board thus finds that the clear statement by the Veteran and his attorney indicating his intention to withdraw the appeal satisfies the requirements for the withdrawal of a substantive appeal. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.) As the Veteran and his attorney have withdrawn the appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a neurocognitive disorder, to include Alzheimer’s disease, on a direct basis or as secondary to service-connected TBI, is remanded. The Veteran has asserted that his claimed disorder, Alzheimer’s disease, was either directly related to an in-service head injury or secondary to his service-connected TBI. In May 2018, the Board remanded this matter to obtain an opinion as to whether it was at least as likely as not that the Veteran’s Alzheimer’s disease was caused by his April 1963 concussion during service. In a September 2018 VA mental disorders examination report, the examiner diagnosed unspecified neurocognitive disorder. It was noted that the Veteran was not a good historian, making statements contrary to facts reported in other reports. The examiner indicated that the Veteran seemed to have short term memory issues but was unclear as to the nature of his memory issues. He was noted to be confused at times, clearly not understanding what was being asked of him. In a September 2018 VA medical opinion, the examiner noted that the Veteran never received a diagnosis of Alzheimer’s dementia while active duty. While it was unclear whether or not he had that diagnosis after the evaluation, the examiner found that the Veteran clearly had memory issues, although it was unclear as to the nature of these issues. He was shown to clearly have some difficulties related to the car accident which occurred while he was active duty. VA treatment records dated in 2018 and 2019 detailed findings of dementia of Alzheimer’s type. In an October 2018 VA medical opinion, it was noted that the Veteran’s TBI had resolved and that his current memory deficits were related to other conditions which would cause memory deficits, such as his history of dementia in 2016 and two subsequent strokes in 2017. In an April 2020 VA PTSD examination report, the examiner diagnosed a neurocognitive disorder. In an August 2020 addendum VA medical opinion, the examiner noted that the Veteran was involved in a motor vehicle collision in April 1963, struck a tree, and went through the windshield with loss of consciousness. The examiner found that the Veteran sustained a TBI during the April 1963 accident. The examiner then opined that the Veteran had a personality disorder, attempted suicide prior to the motor vehicle collision, and would develop dementia in 2016 as well as subsequent strokes. The examiner further opined that dementia and the strokes could not be causally related to the motor vehicle collision that occurred in 1963 without resorting to speculation. Based on the inconclusive findings in the evidence of record as well as the lack of rationale in the August 2020 VA examiner’s opinion, the Board should obtain an additional VA medical opinion with supporting rationale to clarify the etiology of the Veteran’s claimed neurocognitive disorder, to include Alzheimer’s disease. The matter is REMANDED for the following actions: 1. Obtain a VA medical opinion to clarify the etiology of the Veteran’s claimed neurocognitive disorder, to include Alzheimer’s disease, from an appropriate examiner. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran’s statements, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed neurocognitive disorder, to include Alzheimer’s disease, onset during or was causally related to events in service, specifically the documented April 1963 head injury. The examiner must also provide an opinion as to whether any currently diagnosed neurocognitive disorder, to include Alzheimer’s disease, was caused by or aggravated by the Veteran’s service-connected TBI. In doing so, the examiner should acknowledge and discuss the findings in the service treatment records, post-service VA and private treatment records, the September 2018, October 2018, April 2020, and August 2020 VA examination reports/medical opinions, and the medical treatise evidence associated with the record. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2020). 2. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the August 2020 SSOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.