Citation Nr: 21024579 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-42 303 DATE: April 23, 2021 ORDER As the claim is withdrawn, the appeal of entitlement to a rating in excess of 40 percent for herniated nucleus pulposus (HNP), status-post partial laminectomy and microdiskectomy L5-S1 (formerly status post herniated nucleus pulposus, lumbar spine, status post partial laminectomy, L5-S1, status post microdiskectomy, L5-S1 (lumbar spine disability) is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDING OF FACT During his February 2021 Virtual Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal of the claim of entitlement to a rating in excess of 40 percent for a lumbar spine disability. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 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 September 1996 to March 1999, from January 2010 to August 2010, and from April 2011 to September 2011. The Veteran testified before the undersigned at February 2021 Virtual Board hearing. The hearing transcript is of record. Dismissal of Issue on Appeal An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2019). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b) (2019). During his February 2021 Virtual Board hearing, the Veteran indicated that he wished to withdraw his appeal with regard to the issue of entitlement to a rating in excess of 40 percent for a lumbar spine disability. See February 2021 Virtual Board hearing transcript. The Board finds that the Veteran's testimony during the February 2021 Virtual Board hearing qualifies as a valid withdrawal of the issue of entitlement to a rating in excess of 40 percent for a lumbar spine disability. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue. Accordingly, the Board does not have jurisdiction to review the appeal with regard to that issue and it is dismissed without prejudice. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. The last VA examination for the Veteran's service-connected right and left lower extremity radiculopathy was provided in February 2017. During the February 2021 Virtual Board hearing, the Veteran's attorney noted that the last VA examination is over four years old and the disability benefits questionnaire (DBQ) used to complete the examination did not contain the complete rating criteria required to adequately rate the disabilities. See February 2021 Virtual Board hearing transcript. The Veteran has also reported during the Board hearing that he has experienced increased symptomatology from his bilateral lower extremity radiculopathy. See id. The appellant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the evidence of increased symptomatology, and the length of time since the last VA examination, a remand is warranted to obtain a contemporaneous examination for the service-connected left and right lower extremity radiculopathy. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left lower extremity radiculopathy and right lower extremity radiculopathy. The claims folder, including a copy of this remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that this record review took place should be included in the examination report. All indicated studies should be performed. The examiner should identify the nerves involved and indicate whether there is complete or partial paralysis, neuralgia or neuritis; and whether any partial paralysis is mild, moderate, moderately severe, or severe. The examiner should note any other neurologic disability present, and should note the presence and severity of any muscle atrophy; whether the left or right foot dangle or drop, whether movement of muscles is possible below the knees, and whether there is weakened or lost flexion of the left or right knee. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. After completion of the above and any other development deemed necessary, review the expanded record and readjudicate the issues of entitlement to an increased rating for left lower extremity radiculopathy and right lower extremity radiculopathy, based on the entirety of the evidence. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his attorney should be provided with a SSOC. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.