Citation Nr: 18160650
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-06 425
DATE:	December 27, 2018
ORDER
Entitlement to service connection for hearing loss is dismissed.
REMANDED
Entitlement to service connection for a cervical spine condition is remanded.
Entitlement to service connection for a thoracolumbar spine condition is remanded.
FINDING OF FACT
On October 5, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdrawal his appeal for entitlement to service connection for hearing loss.
CONCLUSION OF LAW
The criteria for withdrawal of the appeal for entitlement to service connection for hearing loss by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 2009 to September 2010.  These matters are on appeal from a May 2013 rating decision.  The Veteran requested, but did not appear for a hearing before the Board in April 2018.
Entitlement to service connection for bilateral hearing loss is dismissed.
In correspondence received on October 5, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran expressing his desire to withdraw his appeal for entitlement to service connection for hearing loss.
VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits. See 38 C.F.R. § 20.204. After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. Id. Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn. Id. 
The Veteran’s notification containing his request to withdraw the issues on appeal concerning entitlement to service connection for hearing loss has been reduced to writing, and it contains his name and claim number. The Board has not yet issued a decision concerning this claim, thus the criteria are met for withdrawal of the claim.
When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issue that had been previously appealed. In such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C. § 7105 (d) (2012). Accordingly, further action by the Board on this issue is not appropriate and the appeal should be dismissed. Id. 
REASONS FOR REMAND
Entitlement to service connection for a cervical and thoracolumbar spine condition is remanded.
The December 2014 VA examiner opined that the Veteran’s current cervical and lumbar spine strain conditions were not incurred in or related to service because the May 2010 medical board examination was negative for recurrent back pain or any complaints of neck pain and a problem list dated on May 12, 2010, did not include a neck or back condition in the list of diagnoses.  However, it does not appear that the examiner considered the Veteran’s complete medical history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate or incomplete factual premise is not probative). Particularly, service treatment records documented complaints of back pain in September 2009 as well as objective findings of cervical and lumbsacral pain on motion in August 2009 and June 2010, respectively.  Additionally, on April 2011 VA general medical examination, well before the Veteran filed a claim seeking service connection for cervical and thoracolumbar spine conditions, he reported an onset of upper and lower back pain in 2009 and that an injury or disease occurred during active service. He was diagnosed with low back and upper back strain and described his upper and lower back pain as intermittent and with remissions.  The December 2014 examiner did not address service treatment records documenting painful motion or the findings of the April 2011 VA examination.  Moreover, the examiner did not appear to consider the intermittent nature of the Veteran’s low and upper back pain when formulating his opinion.  Also, a more recent private fitness for duty record dated in January 2016 suggests that the Veteran has arthritis in his cervical and thoracolumbar spine.  Therefore, a new opinion based on a complete review of the Veteran’s claims file is necessary.
The Board notes that the service treatment records also reveal that the Veteran fell during basic training and ultimately underwent an arthroscopic SLAP repair of the left shoulder in March 2010 and has been granted service connection for this disability.  The Veteran has reported that his cervical and thoracolumbar spine disabilities stem from the same left shoulder injury.  Additionally, post service treatment records often show complaints of back and neck pain in conjunction with the Veteran’s treatment for his service-connected left shoulder disability and often times the Veteran’s neck and shoulder are described interchangeably.  In the new opinion, the examiner should address whether or not there is a relationship between the Veteran’s back and neck disabilities and his service connected left shoulder disability.  
While on remand, the VA should obtain all outstanding, pertinent private and VA treatment records, to include VA treatment records from August 2017 to the present
The matters are REMANDED for the following action:
1. Send a notice letter to the Veteran and his representative notifying them of the information and evidence necessary to substantiate the appeal on a theory of secondary service connection.
2. Obtain complete VA treatment records from August 2017 to the present. 
3.  After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims.
4. After the above development is complete, schedule appropriate VA examinations to address the claimed cervical and thoracolumbar spine disabilities. The entire claims file must be made available to, and reviewed by the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.
The examiner is asked to furnish an opinion with respect to the following questions:
(A) The examiner should identify all disabilities of the cervical and thoracolumbar spine present since the date of the claim (i.e. since June 2012), even if such disabilities are currently asymptomatic or resolved during the pendency of the appeal.
(B) For each cervical or thoracolumbar spine disability identified, the examiner should opine as to whether it is at least as likely as not (i.e. whether it is 50 percent or more probable) that any such disability began in, or is otherwise related to service, to include the reported injury during basic training when he fell from an obstacle course, for which he was granted service connection for degenerative arthritis and mild biceps atrophy of the left shoulder status post fracture and arthroscopic SLAP repair. 
The examiner should address the April 2011 VA general examination, in which the Veteran was diagnosed with low back and upper back strain.  The Veteran reported a history of low back and upper back pain beginning in 2009 that was intermittent with remissions and there was an injury in service.
(C) If not directly related to service, then is it at least as likely as not (50 percent or greater) that the cervical and/or thoracolumbar spine disabilities were caused or aggravated beyond their natural progression by the Veteran’s service-connected degenerative arthritis and mild biceps atrophy of the left shoulder status post fracture and arthroscopic SLAP repair?
The examiner is notified that the Veteran is competent to report the onset and continuity of symptomatology for the claimed disabilities. 
A complete rationale should be given for all opinions and conclusions expressed.

 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Crohe, Counsel 

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