Citation Nr: 1102979 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 05-25 339A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to October 1958 and from January 1960 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2002, August and December 2004, and January 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran withdrew a request for a Board hearing in September 2008. The Board notes that the November 2008 remand included the issues of whether service connection is warranted for a psychiatric disorder. On appeal, service connection was granted for an anxiety disorder and the Veteran has not challenged either the effective date of service connection or the evaluation assigned. As such, this issue is no longer before the Board. The Veteran's skin, bilateral hearing loss and TDIU claims 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. FINDINGS OF FACT In a signed January 2009 statement, the Veteran indicated that he wished to withdraw his claim of service connection for diabetes mellitus, which was remanded by the Board in November 2008; this statement was accompanied by a statement of his representative reiterating his intent to withdraw his diabetes mellitus claim. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran of his claim of service connection for diabetes mellitus 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 FINDINGS AND CONCLUSIONS The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2010).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. In the present case, the Veteran, in a signed January 2009 statement, withdrew his claim of service connection for diabetes mellitus. Further, in a January 2009 statement, his representative confirmed the Veteran's intent to withdraw his diabetes mellitus claim. Hence, there remain no allegations of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review the Veteran's diabetes mellitus claim and it is dismissed. ORDER The Veteran's claim of service connection for diabetes mellitus is dismissed. REMAND As to the Veteran's skin claim, as was noted in the November 2008 remand, he was treated for probable irritative eczema in service in June 1962. He also had lipomas on his arms and abdomen in May 1986, and has lipomas, possibly sebaceous cysts, and a raised lesion on his left temple currently, according to August 2003 and May 2004 VA medical records. At the August 2003 examination, he reported that he has had lipomas since 1970 or 1971. A VA examination was deemed necessary under 38 C.F.R. § 3.159 and the Board remanded accordingly. In December 2009, the VA examiner confirmed the Veteran's diagnosis as 1) lipomatosis, 2) seborrheic keratosis, 3) cherry angiomas, and 4) acrochorda. The examiner stated that the Veteran's current skin conditions were less likely than not related to service because "there is no objective evidence of any abnormal skin condition while in service or in close proximity to his separation from service." In offering this assessment, the examiner ignored the "probable irritative eczema" and also ignored the Veteran's lay statements as to the initial onset of his skin problems. Ignoring such evidence is unacceptable and renders the examination inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in- service injury, but relied on the service treatment records to provide a negative opinion). The Board also remanded the issue of whether an increased rating is warranted for the Veteran's bilateral hearing loss. There was a problem with the adequacy of the December 2006 examination, so the remand ordered a new examination. With regard to the post- remand audiological examination, no pure tone threshold or speech recognition results were provided in the report, because the examiner deemed them unreliable. The examiner reported problems such as "inability to maintain a seal." There was no suggestion in the report that the Veteran was attempting to feign his results to achieve a higher rating. As such, the Board finds that he should be given the opportunity for one more audiological examination in order to obtain accurate current test results. Again, the issue of entitlement to TDIU is inextricably intertwined with the claim for an increased rating for bilateral hearing loss, as the Veteran claimed in June 2003 that his hearing loss is contributing to unemployability. Further, in light of the RO's subsequent grant of service connection for anxiety disorder, which is rated as 50 percent disabling, the RO must consider the Veteran's psychiatric disability in determining whether entitlement to a TDIU is warranted. As such, this issue must also be remanded to the RO for further development and adjudication. Accordingly, the case is REMANDED for the following action: 1. Associate any pertinent outstanding records with the claims folder. 2. Obtain an addendum to the December 2009 VA skin examination. The examiner should comment on the in-service notation of a skin condition, noted above, as well as the Veteran's lay statements indicating the initial manifestations of his skin condition, and then based upon all of the evidence of record, indicate whether it is at least as likely as not that any current skin disorder is related to in-service manifestations. In offering an assessment, the examiner must acknowledge and discuss the Veteran's lay report regarding the onset of his skin symptoms. All findings and conclusions should be set forth in a legible report. 3. Afford the Veteran a new VA audiometric examination. The claims files should be made available to and reviewed by the examiner. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should identify all residuals attributable to the Veteran's service- connected bilateral hearing loss. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. Schedule the Veteran for an appropriate VA examination. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service- connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Readjudicate the Veteran's claims, including the claim that he is unemployable due to his service-connected disabilities, in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs