Citation Nr: 21016143 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 20-10 321 DATE: March 19, 2021 ORDER Entitlement to service connection for an upper back disability has been withdrawn. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT At the January 2021 Board hearing, the Veteran indicated that he wished to withdraw his appeal for service connection for an upper back disability. CONCLUSION OF LAW The criteria for withdrawal of the appeal for service connection for an upper back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to November 1965. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). During the appeal, and specifically in January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. Service Connection – Upper Back Disability At his January 2021 virtual Board hearing, the Veteran indicated that he wished to withdraw from appellate review his appeal for service connection for an upper back disability. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205.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 may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. A withdrawal becomes effective when it is received by the Board. 38 C.F.R. § 20.205(b)(3). Here, in January 2021, the Veteran indicated his wish to withdraw from appellate review his appeal for service connection for an upper back disability. When pending appeals are withdrawn, there is no longer an allegation of error or fact or law with respect to that issue, and dismissal of the appeal is appropriate. 38 U.S.C. § 7105(d). Consequently, the Veteran’s appeal for service connection for an upper back disability is dismissed. REASONS FOR REMAND Service Connection – Low Back Disability The Veteran contends that he has a low back disability associated with his military service. At his January 2021 Board hearing, he reported that some exercises during bootcamp were very tough on his lower back and that he began experiencing pain at that time. While a specific lower back injury or incident is not documented in the Veteran’s service treatment records (STRs), his STRs do reflect complaints of tenderness to the lumbosacral area in September 1961 when he was in the hospital for laryngitis during bootcamp. Also, back pain was noted on doctor orders in September 1961, and a backache was indicated in the following days. At the January 2021 hearing, the Veteran testified that he complained about his lower back at that time during service in 1961, when he was bedridden and given medication for his lower back, although the focus was placed on his laryngitis. He reported that he has had lower back pain and difficulties since his service, ultimately resulting in surgery for his lower back at the age of 40. At a January 2020 VA examination, the examiner diagnosed lumbar spine degenerative joint disease and, in reviewing the Veteran’s claims file, focused on whether this current disability was related to an in-service surgery for a cyst located on the lower back. The examiner opined that it was less likely than not that the Veteran’s lower back disability was related to his active service, including his in-service pilonidal cystectomy. Of note, the Veteran has not contended that his current lower back disability is related to that in-service treatment for a cyst and instead has contended this disability is related to exercises during bootcamp. The examiner acknowledged the Veteran’s in-service surgery to his presacral area and hospitalization for such but opined that the Veteran’s STRs did not indicate any musculoskeletal issues to the lower back, and the Veteran did not report any issues with such. The examiner did not record, or appear to give any consideration to, the Veteran’s reports of exercises during bootcamp resulting in lower back pain, nor did the examiner give any consideration to the documented September 1961 reports of tenderness to the lower back, back pain, and a backache. For this reason, the Board finds the January 2020 VA examination to be inadequate. A new VA examination is necessary to obtain an examination that fully considers the evidence of record and the Veteran’s contentions in providing an opinion. Accordingly, this matter is REMANDED for the following action: Schedule an appropriate examination to determine the nature and etiology of any lower back disability that the Veteran may have, to include lumbar spine degenerative joint disease. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. Indeed, all relevant back pathology shown on examination should be annotated in the examination report. Following a review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: a. Identify/diagnose any lower back disability that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any such diagnosed lower back disability onset in, or is otherwise etiologically related to, his service. In other words, is any diagnosed lower back disability consistent with the Veteran’s reported in-service experiences? In expressing these opinions, the examiner is asked to consider and address the Veteran’s contentions of having injured his lower back during bootcamp and the documented September 1961 reports of lower back tenderness, back pain, and backache. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.