Citation Nr: 1237175 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-16 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for cancer of various organs. 2. Entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1975 to February 1979. This matter is before the Board of Veterans' Appeals (the Board) on appeal of October 2009 and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In its October 2009 rating decision, the RO denied the Veteran's service-connection claim for cancer of various organs. In August 2010, the RO awarded the Veteran service connection for a bilateral hearing loss disability. An initial noncompensable disability rating was assigned, effective October 29, 2009. The Veteran submitted timely disagreement with both the denial of his service-connection claim and his assigned initial rating for his hearing loss disability, and perfected appeals as to both issues. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the Lincoln RO in August 2011. A transcript of the hearing has been associated with the Veteran's VA claims folder. As will be discussed in detail below, the Veteran specifically withdrew his service-connection claim for cancer at this August 2011 hearing. The Veteran also submitted additional medical evidence relevant to his hearing loss claim directly to the Board at this hearing, accompanied by a waiver initial consideration of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2011). The Veteran's claim for a compensable initial rating for his service-connected hearing loss disability is 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 At the August 2011 hearing, the Veteran and his representative presented testimony specifically indicating that the Veteran wished to withdraw his appeal of entitlement to service connection for cancer of various organs. CONCLUSION OF LAW The criteria for a withdrawal of the Veteran's substantive appeal have been met as to his claim of entitlement to service connection for cancer of various organs. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2011). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b) (2011). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b) (2011). As noted above, the RO denied the Veteran's claim of entitlement to service connection for cancer of various organs in an October 2009 rating decision. The Veteran perfected an appeal as to this determination. At the August 2011 hearing, the Veteran and his representative specifically requested on the record that the Veteran's service-connection claim for cancer be withdrawn. See the August 2011 hearing transcript, page 2. As this request was made on the record at the August 2011 hearing, there is no requirement that it be in writing. 38 C.F.R. § 20.204(b). The Board finds that the Veteran's withdrawal request qualifies as a valid withdrawal of the above-referenced perfected issue on appeal. See 38 C.F.R. § 20.204 (2011). Accordingly, there remains no allegation of error of fact or law for appellate consideration as to this issue. The matter is dismissed. ORDER The appeal of entitlement to service connection for cancer of various organs is dismissed. REMAND The Board regrets having to delay adjudication of the Veteran's hearing loss claim. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. In correspondence dated in July 2010, the Veteran notified the RO that VA evaluated his hearing loss on June 24, 2010, and that he was to be fitted for hearing aids on July 23, 2010. Significantly, the RO obtained the Veteran's June 24, 2010 VA Audiology Consult report, which indicated "sloping to a mild to moderate sensorineural hearing loss for 2-8 kHz." No numerical values in decibels were identified for any specific Hz levels. Notably, the June 2010 VA physician did direct that the Veteran's actual audiogram display could be located in the Computerized Patient Record System (CPRS), under "Tools." See the June 24, 2010 VA Audiology Consult Report. This June 24, 2010 audiogram display has not been associated with the claims folder. It is the duty of the VA to assist a veteran in obtaining records from Federal agencies, including VA Medical Centers. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As the Veteran has specifically identified a VA treatment report in support of his appeal that is not currently on file, a remand is necessary so that this report, and any other outstanding reports relevant to the Veteran's hearing loss claim can be obtained. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC should contact the Veteran and request information regarding any additional treatment he may have received, or is currently receiving for his service-connected bilateral hearing loss disability. Thereafter, the RO/AMC should take appropriate steps to secure any medical treatment records so identified that are not already of record, to include all relevant treatment records from VA medical facilities. In particular, the RO should specifically request and obtain a copy of the Veteran's June 24, 2010 audiogram display, located in the Computerized Patient Record System (CPRS). Efforts to obtain these records should be memorialized in the Veteran's VA claims folder, and all records obtained should be associated with the claims folder. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review all evidence that has been added to the Veteran's physical and electronic claims folders since the most recent statement of the case (SOC), and readjudicate the Veteran's initial rating claim. If the claim is denied, in whole or in part, the RO/AMC should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs