Citation Nr: 1306339 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-35 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for residuals of a compression fracture of the cervical spine. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to January 1967 and from January 1968 to June 1969. The Veteran had a period of Reserve service with the United States Air Force. He retired from the Reserves in October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefits sought on appeal. The Veteran presented testimony before the undersigned Veterans Law Judge at video hearing held at the RO in September 2012. A transcript of the hearing has been associated with the claims folder. The claim of service connection for bilateral hearing loss 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 a September 2012 hearing before the Board and prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of entitlement to service connection for residuals of a compression fracture of the cervical spine; the Board received written notification of the withdrawal from the Veteran, through his authorized representative, on September 17, 2012. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to service connection for residuals of a compression fracture of the cervical spine by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the September 2012 video hearing before the undersigned, the Veteran withdrew his claim of entitlement to service connection for residuals of a compression fracture of the cervical spine. BVA Transcript at 2. The Board received written notification of the withdrawal from the Veteran, through his authorized representative, on September 17, 2012. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The claim of entitlement to service connection for residuals of a compression fracture of the cervical spine is dismissed. REMAND Further development is needed on the claim of service connection for bilateral hearing loss. Specifically, additional attempts must be made to obtain service treatment and personnel records from the Veteran's Reserve service with the United States Air Force. The only service treatment records (provided by the Veteran) are dated between 1961 and 1977. There are some service personnel records associated with the claims folder, but notably the complete dates of active and inactive duty training are not of record. The Veteran's service treatment records were in transit from the Records Management Center (RMC) in April 2008. In February 2009, Peterson Air Force Base indicated there were no records at their medical facility. In April 2009, the RMC indicated that a search of their facility resulted in a negative response. However, no attempts were made to obtain the Veteran's Reserve records directly from the Department of Air Force, Headquarters Air Reserve Personnel Center, in Denver, Colorado. Such must accomplished upon Remand. 38 C.F.R. § 3.159(c)(2). A new VA examination is needed. The Veteran claims noise exposure as a result of his military duties (navigator). The Veteran's DD-214 and available service personnel records confirm that he was a Navigator at least between 1967 and 1973. A copy of a service treatment record dated in 1985 (again provided by the Veteran) also confirms he was a navigator. The Veteran also testified that he continued to perform navigator duties during his Reserve service. The Veteran has been diagnosed with bilateral hearing loss for which hearing aids have been prescribed. The Veteran was afforded a VA examination in November 2008, which did not take into account the Veteran's competency with regard to continuity of symptomatology of hearing loss since service. Further, the examiner opined hearing loss was not related to service "due to the normal hearing in 1976." The 38 C.F.R. § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. In light of the missing records, the evidence of in-service noise exposure and the Veteran's competent history of diminished hearing since service and continuing to the present, a new VA examination with opinion is needed. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding service personnel (including dates of active and inactive duty training) and treatment records from the appropriate record depository, to include the Department of Air Force, Headquarters Air Reserve Personnel Center, Denver, Colorado. All requests for records and their responses must be clearly delineated in the record. 2. Once all the records have been obtained, schedule the Veteran for an audio examination to determine the nature and likely etiology of the bilateral hearing loss. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. The examiner is requested to state whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's bilateral hearing loss is causally related to confirmed noise exposure while performing duties as a navigator during his period of active military and Reserve service. The examiner is notified the Veteran is competent to state that he has experienced hearing loss symptomatology since his discharge from service. The examiner is requested to provide a rationale for any opinion expressed. The examiner is notified that service connection for hearing loss is not precluded where hearing was within normal limits at separation pursuant to 38 C.F.R. § 3.385. 3. Thereafter, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs