Citation Nr: 1304375 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-15 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a lymph node disability. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a bladder disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1999 to June 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned at a September 2012 Travel Board hearing, and a transcript of this hearing has been associated with the Veteran's claims file. The issues of service connection for a bilateral hearing loss disability, tinnitus, and a bladder condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. Continued on the next page. FINDING OF FACT During the Veteran's September 14, 2012 Travel Board hearing, and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claim for service connection for a lymph node condition. CONCLUSION OF LAW The criteria for withdrawal of the claim for service connection for a lymph node condition have been met. See 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's claim has been dismissed, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. See 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. See 38 C.F.R. § 20.204 (2012). Either the Veteran or his authorized representative may withdraw a claim. See 38 C.F.R. § 20.204 (2012). During the Veteran's September 2012 personal hearing before the Board, the Veteran indicated that he wished to withdraw his claim of entitlement to service connection for a lymph node condition. The Board finds that the Veteran's statement, once transcribed as part of the record of the hearing, indicates his intention to withdraw the appeal as to this issue and satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (holding that a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a Notice of Disagreement within the meaning of 38 U.S.C.A. § 7105(b)). Hence, there remains no allegation of error of fact or law for appellate consideration on the issue of service connection for a lymph node condition. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. ORDER The appeal of the claim of entitlement to service connection for lymph node condition is dismissed. REMAND A remand of the Veteran's claims for service connection for a bilateral hearing loss disability, tinnitus, and a bladder condition is warranted. Although the Board regrets the delay associated with this remand, further development of the record is required before the Board may render a decision. Once VA provides a Veteran with a medical examination, due process requires that VA notify the veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Turning to the facts in the instant case, with regard to the Veteran's claim for service connection for a bilateral hearing loss disability and tinnitus, the Veteran received VA audiological examinations in August 2008 and December 2009. The August 2008 examination report is ambiguous as to whether the Veteran had a bilateral hearing loss disability at that time, with the examiner noting that there was poor test reliability. The August 2008 examiner additionally observed that the Veteran had "significant threshold shifts" during service for the right ear, particularly noting the results of a February 2003 audiogram. Noting the poor test reliability in the August 2008 examination report, the RO provided the Veteran with an additional examination for VA purposes in December 2009, at which time the examiner considered the Veteran's contentions of noise exposure in service. While the Veteran demonstrated a score of 92 percent on word recognition testing (which, pursuant to 38 C.F.R. § 3.385, represents a disability for VA compensation purposes), the examiner stated that the Veteran's hearing was "within normal limits" bilaterally. The examiner did not reconcile these seemingly contradictory findings. Furthermore, the examiner noted that the Veteran had "no significant threshold shift" in hearing between service entry and service separation and concluded that the Veteran's bilateral hearing loss disability and tinnitus were not likely related to active duty service. The examiner did not reconcile this observation that no threshold shift occurred with the note from the August 2008 examiner that the Veteran had "significant threshold shifts" in service for the right ear. Accordingly, the Board finds that an additional examination is warranted addressing the nature and etiology of the Veteran's bilateral hearing loss disability and tinnitus. With regard to the Veteran's claim for service connection for a bladder condition, the Veteran received an examination addressing his urinary frequency in December 2009. The examiner noted the Veteran's contentions of experiencing occasional difficulty voiding and urinary frequency. The examiner did not perform any diagnostic testing, and instead noted that an October 2008 bladder scan indicated that the Veteran's bladder retained 4cc of urine after voiding. The examiner further noted that an associated urology note indicated that the urologist was "unable to identify [any] serious [medical] or physical underlying problems." The examiner then concluded that there was no evidence of urinary retention or bladder outlet obstruction, and she was unable to give a diagnosis of the Veteran's condition. This examination of the Veteran was inadequate because the examiner did not herself perform appropriate diagnostic testing and instead relied on the results of testing that were over a year old at the time of the examination. The examiner also appeared to rely heavily on the October 2008 notation of a VA urologist that the Veteran had no "serious" physical problems. The Board notes that the Veteran may indeed suffer from a service-connected disability even absent "serious" symptoms. Additionally, the examiner noted that the she was unable to review a statement that the Veteran had submitted in support of his claim. For these reasons, the Veteran should be provided with another examination on remand addressing the nature and etiology of the Veteran's urinary frequency. In addition, during the Veteran's September 2012 hearing before the undersigned, the Veteran indicated that he believed that his service-connected post-traumatic stress syndrome (PTSD) was related to his urinary/bladder complaints. The relationship between these conditions, if any, should be addressed on remand. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and provide him with the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on the Veteran's response, attempt to procure copies of all records that have not been previously obtained from identified treatment sources. Ensure that all records of which RO has notice have been obtained and either associated with the Veteran's claims file or his Virtual VA e-folder. 2. Then, schedule the Veteran for a VA audiological examination with an examiner of appropriate expertise to determine the nature and etiology of the Veteran's bilateral hearing loss disability and tinnitus. The claims file must be reviewed by the examiner in connection with the examination and the examination report must reflect such a review was undertaken. After an audiological examination, the examiner should state whether the Veteran has hearing loss as defined by VA under 38 C.F.R. § 3.385. If hearing loss is not demonstrated, please address the score of 92 percent on word recognition testing, which was demonstrated in August 2008. State whether that score established a hearing loss disability that resolved during the pendency of the appeal or whether the score was an anomaly and not a true indicator of hearing loss. Next, if hearing loss is demonstrated, and with consideration of the nature and duration of the Veteran's symptoms, the examiner should opine as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran's bilateral hearing loss and tinnitus disability are etiologically related to service, to include in-service noise exposure. This opinion should consider that the August 2008 examiner stated that the Veteran's right ear underwent a "significant threshold shift" in service. Please assume that the Veteran currently suffers from tinnitus. Additionally, please assume that the Veteran was exposed to loud noise in service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then, schedule the Veteran for a VA examination with a urologist to determine the nature, extent, and etiology of the Veteran's urinary/bladder condition. All indicated diagnostic tests and studies must be performed; the examiner should not rely on the results of past testing in order to render any of the requested opinions. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the service and post-service medical records, as well as the Veteran's statements, the examiner must: Describe the nature of the Veteran's bladder/urinary condition, and provide a diagnosis of this condition. If no diagnosis can be made, the examiner should explain why the Veteran's symptoms of urinary frequency, occasional difficulty voiding, and urinary retention do not support a medical diagnosis. Then, if a diagnosis is made, please opine whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's bladder condition: a) had its onset in service or is otherwise related to service? Please note that the Veteran complained of issues relating to urination in service. b) was caused by the Veteran's service-connected PTSD? c) was aggravated (that is, permanently worsened) by the Veteran's service-connected PTSD? Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 2002 & Supp. 2012). ______________________________________________ MICHAEL HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs