Citation Nr: 1221817	
Decision Date: 06/22/12    Archive Date: 07/02/12

DOCKET NO.  10-10 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a rating higher than 50 percent for bilateral hearing loss.

2.  Entitlement to service connection for lumbar spine degenerative joint disease (low back disorder) as secondary to service-connected bilateral ankle and bilateral knee disorders.

3.  Entitlement to service connection for obstructive sleep apnea (OSA).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from April 1982 to April 1986.

This appeal to the Board of Veterans' Appeals (Board) arose from a May 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas, that denied the service connection claims.

The Veteran appeared at a hearing at the RO in March 2012 before the undersigned Veterans Law Judge.  A transcript of the hearing testimony is associated with the claims file and has been reviewed.

A February 2008 rating decision denied increased ratings for the bilateral ankle disability and bilateral hearing loss, and the Veteran appealed those determinations.  Following receipt of the February 2010 Statement of the Case (SOC), however, the Veteran indicated on his Substantive Appeal (VA Form 9) that he only perfected his appeal of the bilateral hearing loss.  Hence, the matter of an increased rating for the bilateral ankle disability is not before the Board and will not be addressed in the decision below.  See 38 C.F.R. §§ 20.200 and 20.202 (2011).

The issues of entitlement to service connection for low back disorder and OSA 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

On March 15, 2012, prior to the promulgation of a decision on the appeal, the Veteran notified the Board that he withdrew his appeal of the issue of entitlement to a rating higher than 50 percent for bilateral hearing loss.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal of entitlement to a rating higher than 50 percent for bilateral hearing loss have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Applicable Law and Regulations

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.  Withdrawal may be made by an appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

Analysis

In the present case, at the Board hearing, the Veteran withdrew his perfected appeal of entitlement rating higher than 50 percent for bilateral hearing loss.  See Transcript, p. 2.  Hence, there remain no allegations of errors of fact or law for appellate consideration of that issue.  38 C.F.R. § 20.204.  Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed.

ORDER

The appeal of the issue of entitlement to a rating higher than 50 percent for bilateral hearing loss is dismissed.


REMAND

The February 2011 VA joints examination report reflects the examiner opined there was not at least a 50-percent probability that the Veteran's low back disorder was due to his service-connected disorders of the lower extremities (hips, knees, and ankles); but there was at least a 50-percent probability that the Veteran's low back disorder was aggravated by those service-connected disorders.  The RO requested the examiner to state the degree to which the low back disorder was aggravated, but that question was not answered.  The Board must address both direct causality and aggravation to review the Veteran's appeal.  Thus, additional medical input is needed.

The November 2011 VA respiratory examination report reflects the examiner informed the RO he was not qualified to render a nexus opinion of whether there was at least a 50-percent probability that the Veteran's OSA is causally related to his active service.  The examiner advised the RO to refer the case to an examiner with expertise in sleep medicine.  The RO issued a SOC without obtaining an opinion from a sleep medicine practitioner.  In light of the state of the evidence, to include the lay statements of record, the Board finds the RO did not comply with VA's duty to assist.  See 38 C.F.R. § 3.159(c)(4).

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO will send the claims file to the examiner who conducted the February 2011 joints examination.  Ask the examiner to specify the baseline of the low back disorder (prior to aggravation) and the permanent, measurable increase in severity of the low back disorder that is attributable to the service-connected bilateral hip, knee, and, ankle, disorders.

2.  After the above is complete, the AMC/RO will send the claims file to a somnologist or other appropriate examiner with training and experience in sleep medicine.  Ask the examiner to opine whether there is at least a 50-percent probability that the Veteran's OSA had its clinical onset during active service or is otherwise related to his active service.  The examiner should provide a full explanation of the reasons for any opinion rendered.  The explanation should include comment on the opinion of Dr. Bash, to include specific agreement or disagreement and the reasons for any agreement or disagreement.

Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination.  The claims file must be provided for review by the examiner as part of the examination.

3.  After completion of all of the above, the AMC or RO should re-adjudicate the claims on appeal.  If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental SOC (SSOC).  The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record.  An appropriate period of time should be allowed for response.


No action is required of the Veteran until he is notified by the AMC or RO.  He has the right to submit additional evidence and argument on the 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. 2011).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs