Citation Nr: 1308262	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  10-41 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for tinnitus.

2.  Entitlement to an initial compensable disability rating for bilateral hearing loss.  

3.  Entitlement to Chapter 31 vocational rehabilitation benefits.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1973 to March 1977.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision and a February 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  In the April 2009 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss and assigned these disabilities a 10 percent disability rating and a noncompensable (zero percent) disability rating, respectively, effective December 23, 2008.  The RO denied the Veteran's claim for Chapter 31 vocational rehabilitation benefits in the February 2010 decision letter.

The Veteran testified at a videoconference hearing before the undersigned in May 2012.  A transcript of that hearing is of record.

The issues of entitlement to an initial compensable rating for bilateral hearing loss and entitlement to Chapter 31 vocational rehabilitation benefits 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.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

At his Board hearing, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal as to the issue of entitlement to an initial disability rating in excess of 10 percent for tinnitus.



CONCLUSION OF LAW

The criteria for withdrawal of the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for tinnitus 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

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 a claimant or by an authorized representative.  38 C.F.R. § 20.204 (2012).  

At the Board hearing held on May 22, 2012, prior to the promulgation of a decision in his appeal, the Veteran indicated that he was withdrawing his appeal as to the issue of entitlement to an initial disability rating in excess of 10 percent for tinnitus.  As such, the Veteran has withdrawn this claim and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue.  Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed.



ORDER

The claim of entitlement to an initial disability rating in excess of 10 percent for tinnitus is dismissed.



REMAND

The Veteran's remaining claims on appeal are those of entitlement to an initial compensable disability rating for bilateral hearing loss and entitlement to Chapter 31 vocational rehabilitation benefits.  

The Veteran was last afforded a VA examination to assess the severity of his hearing loss in April 2010.  During his May 2012 hearing, the Veteran said that he was certain that his hearing had worsened, but that he felt it was perhaps not too severe.  

When there is evidence that a claimant's service-connected disability may have increased in severity since the prior examination, a new examination is required to evaluate the current degree of impairment.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination).

The Veteran's claim of entitlement to Chapter 31 vocational rehabilitation benefits, is inextricably intertwined with that of the Veteran's claim, because entitlement to vocational rehabilitation benefits is dependent, at least in part, on the percentage evaluation of his service connected disabilities.  38 C.F.R. § 21.40(a) (2012); see Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  Thus, the Board will defer adjudication of that claim until his increased rating claim has been resolved.

Accordingly, these claims are REMANDED for the following:

1.  Schedule the Veteran for a VA audiological examination.  The claims file and a complete copy of this REMAND should be reviewed in association with the examination.  All necessary studies and tests should be conducted

The examiner should specifically comment on the effects of the Veteran's hearing loss on occupational functioning and daily activities.

2.  Thereafter, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.

3.  If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order.

The Veteran 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).

These claims 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).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs