Citation Nr: 21065293 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-23 955 DATE: October 25, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected cervical strain prior to November 7, 2019, and a rating in excess of 30 percent thereafter, is dismissed. Entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right upper extremity, prior to September 27, 2020, and a rating in excess of 40 percent thereafter, is dismissed. REMANDED Entitlement to an initial compensable rating for service-connected right index finger fracture with detached extensor tendon tip prior to April 29, 2019, and a rating in excess of 10 percent thereafter, is remanded. FINDING OF FACT In a May 18, 2021, statement, the Veteran clearly expressed his wish to withdraw his appeal of the issues of entitlement to: (1) entitlement to a rating in excess of 20 percent for service-connected cervical strain prior to November 7, 2019, and a rating in excess of 30 percent thereafter; and (2) entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right upper extremity, prior to September 27, 2020, and a rating in excess of 40 percent thereafter. CONCLUSION OF LAW The criteria for withdrawal of the appeal to the issues of entitlement to: (1) entitlement to a rating in excess of 20 percent for service-connected cervical strain prior to November 7, 2019, and a rating in excess of 30 percent thereafter; and (2) entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right upper extremity, prior to September 27, 2020, and a rating in excess of 40 percent thereafter, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1987 to October 1992 and has service in the Reserves. In September 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board); a copy of the transcript of that hearing is of record. In December 2019, the Board remanded these issues to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. WITHDRAWAL Entitlement to a rating in excess of 20 percent for service-connected cervical strain prior to November 7, 2019, and a rating in excess of 30 percent thereafter, and entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right upper extremity, prior to September 27, 2020, and a rating in excess of 40 percent thereafter. 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. Appeal withdrawals must be in writing and include the Veteran's name, claim number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204 (b)(1). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. An appeal withdrawal is effective upon receipt. 38 C.F.R. § 20.204 (b)(3). Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any of the withdrawn issues, provided such filings would be timely under these rules if the appeal withdrawal had never been filed. 38 C.F.R. § 20.204 (c). On May 18, 2021, the Board received a signed statement from the Veteran requesting withdrawal of his pending appeal concerning his claims of entitlement to: (1) entitlement to a rating in excess of 20 percent for service-connected cervical strain prior to November 7, 2019, and a rating in excess of 30 percent thereafter; and (2) entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right upper extremity, prior to September 27, 2020, and a rating in excess of 40 percent thereafter. The statement was written and included the Veteran's name and claim number. Id. His withdrawal was received prior to a decision by the Board on this issue. It was explicit, unambiguous, and done with a full understanding of the consequences of such actions. Delisio v. Shinseki, 25 Vet. App. 45, 58 (2011). Thus, the criteria for withdrawal of this appeal are satisfied. See 38 C.F.R. § 20.204 (b). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appeals. 38 U.S.C. § 7105. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that was appealed. Accordingly, the claims of entitlement to: (1) entitlement to a rating in excess of 20 percent for service-connected cervical strain prior to November 7, 2019, and a rating in excess of 30 percent thereafter; and (2) entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right upper extremity, prior to September 27, 2020, and a rating in excess of 40 percent thereafter, are dismissed. See 38 U.S.C. § 7105 (d). REASONS FOR REMAND Entitlement to an initial compensable rating for service-connected right index finger fracture with detached extensor tendon tip prior to April 29, 2019, and a rating in excess of 10 percent thereafter. The Board, in its December 2019 remand, directed the RO to afford the Veteran a new examination of his service-connected right index finger disability. The Board specifically directed the examiner to consider the Veteran's complaint, during his June 2019 Disability Benefits Questionnaire (DBQ), of right hand pain spreading to all fingers, and the VA examiner's inclusion of the diagnosis of hand strain, bilateral, affecting all fingers, in the September 2019 DBQ addendum. The Board notes that arthritis of the right hand, thumb, middle, ring, and little fingers, has been denied service connection. In a February 2020 DBQ, the examiner did not appear to consider, as there was no discussion included in the report, the Veteran's complaint, during his June 2019 DBQ, of right hand pain spreading to all fingers, and the VA examiner's inclusion of the diagnosis of hand strain, bilateral, affecting all fingers, in the September 2019 DBQ addendum, as directed by the Board in its December 2019 remand. On remand, the RO should afford the Veteran an adequate VA examination of his service-connected right index finger disability. The most recent VA treatment records available for Board review are dated in June 2020; on remand, the RO should obtain and associate with the claims file the Veteran's updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period dated from June 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right index finger fracture with detached extensor tendon tip. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In doing so, the examiner must consider and discuss the Veteran's complaint, during his June 2019 DBQ, of right hand pain spreading to all fingers, and the VA examiner's inclusion of the diagnosis of hand strain, bilateral, affecting all fingers, in the September 2019 DBQ addendum; in essence, the Board seeks specific medical comment as to the involvement of the right hand and other digits of the right hand related to his service-connected right index finger fracture with detached extensor tendon tip. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.