Citation Nr: 21072067 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-65 266 DATE: December 2, 2021 ORDER Entitlement to service connection for a right thumb disorder is dismissed. Entitlement to service connection for a left wrist disorder is dismissed. Entitlement to a compensable rating for surgical scars, status post lumbar fusion, is dismissed. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a left hand disorder is remanded. Entitlement to service connection for a right hand disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a rating in excess of 10 percent for degenerative disc disease, lumbar spine at L3-4, L4-5 is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. FINDING OF FACT In July 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the Veteran that a withdrawal of the issues of service connection for right thumb and left wrist disorders, and for a compensable rating for surgical scars, is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of service connection for a right thumb disorder by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of service connection for a left wrist disorder by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of a compensable rating for surgical scars, status post lumbar fusion by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from August 2000 to August 2003, from April 2004 to August 2006, and from March 2008 to January 2010. He testified before the undersigned Veterans Law Judge during a July 2021 hearing. This matter is on appeal from September 2013 and June 2015 rating decisions. In a separate decision, the Board is dismissing an appeal for increased ratings for the lumbar spine and left lower extremity that were denied in an August 2020 rating decision, which was processed under the modernized review system, also known as the Appeals Modernization Act (AMA). In this case, the current legacy system appeal for the issues listed above was certified to the Board in April 2019. While this appeal was pending scheduling of the requested hearing, the Veteran filed a new claim seeking increased ratings for his lumbar spine and left lower extremity in May 2020. The adjudication of those claims in August 2020 was erroneous, as those issues were already on appeal at the Board. Withdrawal 1. Entitlement to service connection for a right thumb disorder 2. Entitlement to service connection for a left wrist disorder 3. Entitlement to a compensable rating for surgical scars, status post lumbar fusion 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. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, the Veteran has withdrawn the issues of service connection for right thumb and left wrist disorders, and for a compensable rating for surgical scars. Hence, there remain no allegations of errors of fact or law for appellate consideration of those issues. The withdrawal was at the Veteran's July 2021 hearing, and was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal of the issues of service connection for right thumb and left wrist disorders, and for a compensable rating for surgical scars, and they are dismissed. REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a cervical spine disorder because no VA examiner has provided an opinion considering the Veteran's testimony. The Veteran was provided a VA examination in January 2015. The examiner opined that it was not related to service, and that claimed neck pain in service was acute. However, the Veteran testified about having ongoing neck pain since service. A remand for a new examination is necessary. 2. Entitlement to service connection for a left hand disorder is remanded. 3. Entitlement to service connection for a right hand disorder is remanded. The Veteran testified that he believes his bilateral hand disorder is radiculopathy associated with his cervical spine. The issues of service connection for bilateral hand disorders are therefore related to the claim for service connection for a cervical spine disorder. Since service connection for a cervical spine disorder is being remanded, these issues must also be remanded. Additionally, an October 2017 examiner opined that the Veteran's bilateral hand disorder was not related to service, as hand complaints during service were acute only, and there was no evidence of chronicity of care. The Veteran's testimony also indicates that he has had ongoing hand pain service since service. On remand, a new examination should be provided. 4. Entitlement to service connection for headaches is remanded. The Board cannot make a fully-informed decision on the issue of service connection for headaches because no VA examiner has opined whether they are related to service. The Veteran testified that had headaches from wearing Kevlar during service. A remand for an examination is necessary. 5. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. 6. Entitlement to a rating in excess of 10 percent for degenerative disc disease, lumbar spine at L3-4, L4-5 is remanded. The Veteran asserts that the last examination in August 2020 is not adequate as he does experience flare-ups, while the examination report shows no flare-ups. A remand for a new examination is necessary. The matters are REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records and private records from the UT Medical Group in Memphis, Tennessee. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed cervical spine, bilateral hand, and headache disorders. (Multiple examinations may instead be conducted, and most likely are necessitated; the Board leaves this to the discretion of the Agency of Original Jurisdiction (AOJ) and the facility at which any examination is to be conducted.) The most up-to-date Disability Benefits Questionnaire(s) should be utilized. For any cervical spine, bilateral hand, and headache disorders diagnosed, the examiner(s) is requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnoses are related to the Veteran's military service. a) If a cervical spine disorder is opined to be related to service, the examiner should also opine as to whether any bilateral hand disorder is at least as likely as not caused or aggravated by the cervical spine disorder. (If a bilateral hand disorder is found to have been aggravated by the cervical spine disorder, the examiner should quantify the approximate degree of aggravation.) b) The examiner should also opine as to whether the Veteran's headaches are at least as likely as not caused or aggravated by the service-connected sleep apnea. (If headaches are found to have been aggravated by the service-connected sleep apnea, the examiner should quantify the approximate degree of aggravation.) The examiner should consider the Veteran's testimony of ongoing neck and bilateral hand pain since service, as well as neck pain and headaches being due to wearing Kevlar. A complete rationale should be given for all opinions and conclusions expressed. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine and left lower extremity disabilities. 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 so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.