Citation Nr: 0815223	
Decision Date: 05/08/08    Archive Date: 05/14/08

DOCKET NO.  06-27 365	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUES

1.  Entitlement to service connection for a right shoulder 
disability.

2.  Entitlement to service connection for bilateral hearing 
loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for depression.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Simone C. Krembs, Associate Counsel


INTRODUCTION

The veteran served on active duty from February 1970 to 
September 1970.

This matter comes before the Board of Veterans' Appeals 
(Board) from an August 2005 rating decision of a Department 
of Veterans Affairs (VA) Regional Office (RO) that denied the 
veteran's claims of entitlement to service connection for a 
right shoulder disability, bilateral hearing loss, tinnitus, 
and depression.  In October 2007, the veteran testified 
before the Board at a hearing that was held at the RO.

The issues of entitlement to service connection for bilateral 
hearing loss, tinnitus, and depression are addressed in the 
REMAND portion of the decision below and are REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDING OF FACT

In the October 2007 hearing before the Board, the veteran 
withdrew his appeal concerning entitlement to service 
connection for a right shoulder disability.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal of the 
issue of entitlement to service connection for a right 
shoulder disability have been met.  38 U.S.C.A. § 7105(b)(2) 
(West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007).






REASONS AND BASES FOR FINDING AND CONCLUSION

A Substantive Appeal may be withdrawn in writing at any time 
before the Board promulgates a decision.  38 C.F.R. §§ 
20.202, 20.204(b) (2007).  Withdrawal may be made by the 
appellant or by his authorized representative, except that a 
representative may not withdraw a Substantive Appeal 
personally filed by the appellant without his/her express 
written consent.  38 C.F.R. § 20.204(c) (2007).

In August 2006, the veteran submitted a VA Form 9 perfecting 
his appeal as to the issue of entitlement to service 
connection for a right shoulder disability, as identified in 
the August 2006 statement of the case.  At his October 2007 
hearing before the Board, the veteran stated that he was 
withdrawing the appeal as to the issue of entitlement to 
service connection for a right shoulder disability.  The 
Board finds that the veteran's statement indicating his 
intention to withdraw the appeal as to this issue, once 
transcribed as a part of the record of his hearing, satisfies 
the requirements for the withdrawal of a substantive appeal.  
See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).  

As the appellant has withdrawn his right shoulder claim, 
there remains no allegation of errors of fact or law for 
appellate consideration concerning this issue.  The Board, 
therefore, has no jurisdiction to review the veteran's right 
shoulder claim and must dismissed the issue.  


ORDER

The claim for service connection for a right shoulder 
disability is dismissed.  


REMAND

Additional development is needed prior to further disposition 
of the claims of entitlement to service connection for 
bilateral hearing loss, tinnitus, and depression.

VA's duty to assist includes a duty to provide a medical 
examination or obtain a medical opinion where it is deemed 
necessary to make a decision on the claim.  38 U.S.C.A. 
§ 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007); Robinette v. 
Brown, 8 Vet. App. 69 (1995).  

The veteran contends that his current bilateral hearing loss 
and tinnitus are the result of acoustic trauma sustained on 
the firing range during basic training.  He asserts that he 
was not given hearing protection until he complained of 
ringing and pain in his ears.  In support of his claims, he 
submitted correspondence dated in March, September, and 
December 2005, in which his private physician related his 
current bilateral hearing loss to exposure to acoustic trauma 
in service.  

At his October 2007 hearing before the Board, the veteran 
denied a significant history of post-service noise exposure.  
However, records associated with the veteran's claim for 
disability benefits from the Social Security Administration 
demonstrate that the veteran then reported an occupational 
history involving the use of welding machines, grinders, 
drill presses, and cutting equipment.  Additionally, on 
private audiometric testing in August 2005, the veteran 
reported that his history of noise exposure included shooting 
for qualifying as a police officer, work as a welder, use of 
lawn mowers, weeders, and chainsaws, in addition to his 
military history of firing weapons without using hearing 
protection.  

The veteran has not yet been afforded a VA examination with 
respect to his claims of entitlement to service connection 
for bilateral hearing loss and tinnitus.  While the veteran 
has submitted evidence supportive of his claims, because the 
record reflects that the veteran did experience noise 
exposure following service, it remains unclear to the Board 
whether the veteran's current hearing loss and tinnitus are 
related to his period of active service, or whether his 
hearing loss and tinnitus are more likely the result of post-
service noise exposure.  Accordingly, the Board finds that a 
remand for an examination is necessary in order to fairly 
address the merits of the veteran's claims.

With regard to the claim of entitlement to service connection 
for depression, the veteran asserts that his depression first 
manifested in service.  His service medical records 
demonstrate that he underwent psychiatric evaluation in 
August 1970.  At that time, he reported feeling depressed 
since entering active service, and feeling stressed about his 
parents and spouse.  He stated that he "could always kill 
himself if things didn't work out."  The examiner, however, 
noted that the veteran did not appear to be depressed.  The 
veteran was diagnosed with chronic moderately severe schizoid 
personality, which existed prior to his entry into service.  
It was recommended that he be discharged from service as a 
result of not meeting procurement medical fitness standards.

Post-service medical records demonstrate that the veteran has 
been diagnosed with depression.  Additionally, in support of 
his claim, the veteran submitted correspondence dated in 
March and December 2005, in which his private physician 
related his current depression to his active service.  The 
veteran has not yet been afforded a VA examination with 
respect to his claim of entitlement to service connection for 
depression.  As the veteran has submitted evidence supportive 
of his claim, and because the record reflects a complaint of 
depression in service but no diagnosis, it remains unclear to 
the Board whether the veteran's current depression first 
manifested during his period of active service.  Accordingly, 
the Board finds that a remand for an examination is necessary 
in order to fairly address the merits of the veteran's claim.


Finally, the record reflects that the veteran has received 
private treatment for his hearing loss, tinnitus, and 
depression since 2001.  Treatment records dated in March and 
April 2005 have been associated with the record.  As the 
veteran reported in October 2007 testimony before the Board 
that he had recently received additional treatment, it 
appears that there are outstanding records that have not been 
associated with the file.  As these records may be pertinent 
to the veteran's claims, they are relevant and should be 
obtained.

Accordingly, the case is REMANDED for the following actions:

1.  After obtaining the necessary 
authorization from the veteran, obtain 
and associate with the claims file all 
private medical records pertaining to 
treatment for hearing loss, tinnitus, 
and depression from D.L. Trent, M.D., 
and the Warren Clinic, in McAlester, 
Oklahoma, dated from 2001 to the 
present.  All attempts to secure these 
records must be documented in the 
claims folder.  

2.  Thereafter, schedule the veteran 
for a VA audiological examination.  The 
claims file must be made available to 
and be reviewed by the examiner in 
conjunction with the examination.  The 
examiner must indicate in the 
examination report that the claims file 
was reviewed.  The examiner should 
provide opinions as to the following 
questions:

a.  Is it at least as likely as 
not (50 percent probability or 
greater) that the veteran's 
current sensorineural hearing loss 
is causally related to his period 
of active service, including 
exposure to hazardous noise?

b.  Is it at least as likely as 
not (50 percent probability or 
greater) that the current tinnitus 
is causally related to his period 
of active service, including 
exposure to hazardous noise?

In answering these questions, the 
examiner should address any 
post-service noise exposure.  The 
rationale for all opinions must be 
provided.

3.  Schedule the veteran for a VA 
psychiatric examination.  The examiner 
should specifically consider service 
medical records demonstrating 
complaints of depression.  The claims 
file must be made available to and be 
reviewed by the examiner in conjunction 
with the examination.  The examiner 
must indicate in the examination report 
that the claims file was reviewed.  The 
examiner should provide opinions as to 
the following questions:

a.  Did the veteran have a pre-
existing psychiatric disorder at the 
time of his entry into service?  

b.  If the veteran did have a pre-
existing psychiatric disorder at the 
time of his entry into service, is 
it as likely as not (50 percent 
probability or greater) that the 
pre-existing psychiatric disorder 
was aggravated or permanently 
worsened as a result of the 
veteran's service?  In answering 
this question, the examiner should 
specifically comment as to whether 
any worsening of the psychiatric 
disorder may be considered a 
permanent worsening of a pre-
existing condition as a result of 
service, or whether any worsening of 
his disorder was a natural 
progression of the disorder.

c.  Is it at least as likely as 
not (50 percent probability or 
greater) that any current 
psychiatric disorder, including 
depression, first manifested in 
service or is otherwise causally 
related to his period of active 
service?

The rationale for all opinions must be provided.

4.  Then, readjudicate the claims of 
entitlement to service connection for 
bilateral hearing loss, tinnitus, and 
depression.  If any decision remains 
adverse to the appellant, issue a 
supplemental statement of the case.  
Allow the appropriate period for 
response.  Then, return the case to the 
Board.

The appellant has the right to submit additional evidence and 
argument on the matters the Board is remanding.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by 
the United States Court of Appeals for Veterans Claims for 
additional development or other appropriate action must be 
handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 
7112 (West Supp. 2007).  



______________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs