Citation Nr: 1323398 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-48 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for left ear hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from January 1969 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 RO rating decision, which denied the benefits sought on appeal. In March 2011, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The claim for entitlement to service connection for left ear 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, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT At his March 2011 Travel Board hearing, prior to the promulgation of a decision by the Board, the Veteran withdrew from appellate review his claims for service connection for tinnitus and right ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of the claim for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Withdrawal may be made by the appellant or by the authorized representative. 38 C.F.R. § 20.204(c) (2012). The RO certified for appeal the issues of entitlement to service connection for tinnitus and right ear hearing loss to Board of Veterans' Appeals. At a Travel Board hearing held on March 16, 2011, the Veteran withdrew his appeal seeking service connection for tinnitus and right ear hearing loss. The transcript has been reduced to writing and is of record. The Veteran's testimony indicating his intention to withdraw the claims of entitlement to service connection for tinnitus and right ear hearing loss satisfies the requirements for withdrawal of a substantive appeal. Tomlin v. Brown, 5 Vet. App. 355 (1993). As the appellant has withdrawn his appeal as to the issue of entitlement to service connection for tinnitus and right ear hearing loss, there remains no allegation of errors of fact or law for appellate consideration concerning those issues. The Board, therefore, has no jurisdiction to review the Veteran's claims for entitlement to service connection for tinnitus and right ear hearing loss and must dismiss the claims. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d), 3.309(e) (2012). ORDER The appeal concerning the issue of entitlement to service connection for tinnitus is dismissed. The appeal concerning the issue of entitlement to service connection for right ear hearing loss is dismissed. REMAND Although the Board regrets the additional delay, further development is needed prior to the disposition of the Veteran's claim for service connection for left ear hearing loss. At the March 2011 personal hearing, the Veteran testified that he was exposed to excessive noise from gun fire during service. Specifically, he described acoustic trauma incurred while out on the shooting range. After he had removed his hearing protection, a fellow service member shot his firearm close to the Veteran's left ear. Reportedly, he immediately noticed a decline in hearing acuity in the left ear, which progressively worsened throughout the years. The Veteran denied any significant post-service occupational noise exposure. The Veteran's service treatment records do not show complaints, treatment, or a diagnosis of hearing loss. Evaluation of the Veteran's hearing was limited to whispered voice tests. The April 1972 separation examination report indicated that the Veteran had no ear defects. His hearing was 15/15 on whispered voice testing. However, December 1973 audiological testing showed the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hertz in the left ear were 0, 0, 0, 0, 25, and 40. In September 1979 the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hertz in the left ear were 5, 5, 5, 5, 30, and 40. In this case, there was some left ear hearing loss (although not to a level of disability for VA purposes) when tested in 1973 and 1979. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). In support of his claim, the Veteran submitted private audiological reports dated in August 2005, May 2009 and November 2009, that contained a diagnosis of left ear sensorineural hearing loss. However, they did not provide an opinion addressing the etiology of the Veteran's left ear hearing loss. In light of the above, the Board finds that a VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. (2006). Relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for left ear hearing loss. After securing any necessary release, the RO/AMC should request any relevant records identified which hare not duplicates of those already contained in the claims file. If any requested records are not available the Veteran should be notified of such. 2. Schedule a VA audiology examination to determine the nature of any current left ear hearing loss and to obtain an opinion as to whether the Veteran's current left ear hearing loss is possibly related to service. The claims folder must reviewed in conjunction with the examination. All tests or studies deemed necessary should be accomplished and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that current left ear hearing loss had its onset in service or is related to any incident of service, to include exposure to noise from fire arms while on the shooting range. The examiner is instructed to accept the Veteran's description of in-service incident wherein a fellow service member shot his firearm close to the Veteran's left ear as credible. The examiner must explain his/her reasoning for the conclusion reached. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs