Citation Nr: 1307585 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-20 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an evaluation in excess of 60 percent for hypertension with kidney disease stage III. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to September 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the claim. In December 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is in the Virtual VA paperless claims file system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT During the December 2012 videoconference hearing, the Veteran withdrew from appellate consideration his claim for an evaluation in excess of 60 percent for hypertension with kidney disease stage III. CONCLUSION OF LAW The criteria for withdrawal of the Veteran's appeal as to the issue of his entitlement to an evaluation in excess of 60 percent for hypertension with kidney disease stage III, 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 REASONS AND BASES FOR FINDING AND CONCLUSION An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 the veteran or by his or her authorized representative. Id. During the December 2012 hearing before the undersigned Veterans Law Judge, the Veteran withdrew that portion of his appeal involving the issue of entitlement to an evaluation in excess of 60 percent for hypertension with kidney disease stage III, and, hence, there remains no allegations of errors of fact or law for appellate consideration as to this matter. Accordingly, the Board does not have jurisdiction to review that portion of the appeal and it must be dismissed. ORDER The appeal relating to the issue involving the Veteran's entitlement to an evaluation in excess of 60 percent for hypertension with kidney disease stage III, is dismissed. REMAND The Veteran is seeking service connection for bilateral hearing loss. Statements submitted during this appeal reflect that it is his contention that his current hearing problems developed as a result of noise exposure to airplane engines during service. The VA has conceded that the Veteran was exposed to acoustic trauma during service. See Supplemental Statement of the Case, August 2012. The Veteran was afforded a VA audiological examination in August 2007 for the purpose of determining the nature and etiology of any current hearing loss. A review of the examination report reveals that the Veteran has a current bilateral hearing loss disability for VA purposes. Following a review of the claims file, it was the examiner's opinion that the Veteran's current hearing loss is less likely as not related to the noise exposure he experienced while in the Navy. In providing this opinion, the only evidence cited by the VA examiner was the Veteran's audiological data in his service treatment records. The Veteran's service treatment records show the Veteran underwent a significant in-service threshold shift between entrance and separation. See Reports of Medical Examinations, March 1969, November 1969, and September 1973. The VA audiology examiner did not consider the Veteran's in-service threshold shift and as a result, the examination is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (an adequate medical opinion must consider all relevant records in the VA claims file so that the opinion is fully informed). Additionally, the VA examiner did not consider that VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, a new opinion is needed which considers the Veteran's in-service threshold shift and does not base the opinion solely on the Veteran's lack of hearing loss during service. See 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once the VA undertakes to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Additionally, the Veteran testified that he has been seen by three VA examiners at the Grand Junction VA Medical Center (VAMC) and that these examiners verified his current hearing loss is a result of his in-service noise exposure. See December 2012 Hearing Transcript, pgs. 7-10. As mentioned above, there is only one VA audiology examination in the record. There are no other VAMC treatment notes in the record related to the Veteran's hearing loss. Therefore, it is necessary to request any additional VA audiological examinations or treatment notes from the Grand Junction VAMC. See 38 C.F.R. § 3.159(c)(2). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical care providers who treated him for hearing issues since service, including all VA examiners at the VAMC in Grand Junction. After securing the necessary release(s), obtain the identified records, including all relevant records from the Grand Junction VAMC from 2004 to present. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed bilateral hearing loss. The claims file, including a copy of this REMAND, must be made available to the reviewing examiner, and the opinion should reflect that the claims file was reviewed. The examiner is requested to consider the history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether any current hearing loss is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to the Veteran's active military service, including the acoustic trauma conceded by the VA that the Veteran experienced while serving for approximately four years as an aviation technician on a flight line. A detailed rationale should be provided for all opinions, and should reflect consideration of both lay and medical evidence, specifically the Veteran's in-service bilateral threshold shift and his claims that he experienced numbness to certain sounds in his right ear and that he noticed hearing loss before 1976. The examiner is reminded that the lack of an official record of hearing loss in the Veteran's service treatment records is not fatal to this claim. 3. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs