Citation Nr: 1111596	
Decision Date: 03/23/11    Archive Date: 04/05/11

DOCKET NO.  09-18 759A	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for pleural effusion.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to an initial rating in excess of 10 percent for service-connected right elbow status post fracture.

5.  Entitlement to service connection for right ear hearing loss.

6.  Entitlement to service connection for acquired psychiatric disability.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Curameng, Counsel


INTRODUCTION

The Veteran had active duty service from September 1965 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran's notice of disagreement was received in January 2009.  A statement of the case was issued in May 2009, and a substantive appeal was received in June 2009.  The Veteran appeared at a December 2010 hearing before the Board at the RO.  A transcript is of record.    

Although a claimant may describe only one particular mental disorder in a service connection claim, the claim should not necessarily be limited to that disorder.  Rather, VA should consider the claim as a claim for any mental disability that may reasonably be encompassed by several factors including:  the claimant's description of the claim, the symptoms the claimant describes, and information the claimant submits or VA develops and obtains in connection with the claim.  The Court has indicated that a claimant does not file a claim to receive benefits only for a particular psychiatric diagnosis, but rather for the affliction his mental condition, however diagnosed, causes him.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The evidence references to various psychiatric diagnoses.  Accordingly, the psychiatric issues have been redescribed under one issue as reflected on the first page of this decision which is intended to encompass consideration of all psychiatric disorders, however diagnosed.

Additional evidence was received at the hearing before the Board at the RO in December 201 .with a written waiver of preliminary RO review 

The issues of entitlement to service connection for right ear hearing loss and for service connection for acquired psychiatric disability are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

By testimony provided at the December 2010 hearing before the Board at the RO, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of entitlement to service connection for pleural effusion, sleep apnea, and hypertension; and entitlement to an initial rating in excess of 10 percent for service-connected right elbow status post fracture.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant (specifically for the issues of entitlement to service connection for pleural effusion, sleep apnea, and hypertension; and entitlement to an initial rating in excess of 10 percent for service-connected right elbow status post fracture) have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  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. § 20.204 (2010).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

At the December 2010 Board hearing, the Veteran withdrew the issues of pleural effusion, sleep apnea, and hypertension; and entitlement to an initial rating in excess of 10 percent for service-connected right elbow status post fracture.  Consequently, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeals of entitlement to service connection for pleural effusion, sleep apnea, and hypertension; and entitlement to an initial rating in excess of 10 percent for service-connected right elbow status post fracture.  The aforementioned issues are dismissed.


ORDER

The Veteran's appeals of entitlement to service connection for pleural effusion, sleep apnea, hypertension, and depression/anxiety; and entitlement to an initial rating in excess of 10 percent for service-connected right elbow status post fracture are dismissed.


REMAND

The remaining issues before the Board are entitlement to service connection for right ear hearing loss, and entitlement to service connection for acquired psychiatric disability.  

At the hearing before the Board at the RO in December 2010, the Veteran testified that that there are some additional VA treatment reports which are not of record.  Specifically, the Veteran mentioned VA mental healthcare notes from the VA Medical Center in Asheville, North Carolina.  The most current VA treatment record in the claims file is from December 2009.  In view of the Veteran's assertion of missing VA records, appropriate action to obtain any such records is necessary before the Board may proceed with appellate review. 

The Veteran asserts that his current right ear hearing loss is related to service.  For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  It appears that right ear hearing loss preexisted service.  A May 1965 entrance examination shows an auditory threshold of 60 decibels at 4000 Hz (when converted from American Standards Association (ASA) units to International Standards Organization (ISO) units)).  The Board notes that a February 2008 VA treatment record provides, "No change in hearing."  It is unclear to the Board whether the Veteran currently has right ear hearing loss.  The Board believes that a VA examination would be appropriate to determine whether the Veteran has a current disability and whether he had a preexisting disability that was aggravated in service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following actions:

1.  The RO should take appropriate action to request all updated medical records from the Asheville VA Medical Center from January 2010 to the present.
  
2.  The RO should schedule the Veteran for a VA audiological examination to determine the nature, extent and etiology of any currently manifested right ear hearing loss.  The Veteran's claims file must be provided to the examiner for review.  All appropriate audiological testing should be performed.  After reviewing the claims file and examining the Veteran, the examiner should respond to the following:

Is it at least as likely as not (a 50% or higher degree of probability) that there was an increase in severity of the Veteran's right ear hearing loss during service beyond the natural progression of that preexisting disability?

A rationale should be provided.

2.  After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues of entitlement to service connection for right ear hearing loss and acquired psychiatric disability.  The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  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 of Veterans' Appeals 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. 2010).



		
ALAN S. PEEVY
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs