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 REASONS AND BASES FOR FINDING AND CONCLUSION A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2007).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