Citation Nr: 1327126 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-21 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss disability. 4. Entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 (hearing loss, tinnitus, and back) and November 2009 (hypertension) rating decisions of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's June 2007 VA Form 9, substantive appeal, he requested a Decision Review Officer (DRO) hearing. However, in a May 2011 phone call, the Veteran indicated that he wanted a Board hearing instead. A Board videoconference hearing was held by the undersigned Veterans Law Judge in June 2013. All issues other than the issue of service connection for hypertension are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. FINDING OF FACT During the Veteran's June 2013 hearing before the undersigned, he withdrew his appeal on the issue of service connection for hypertension. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION During the Veteran's June 2013 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his appeal concerning the matter of service connection for hypertension. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. With regard to the issue withdrawn by the Veteran, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed. ORDER The appeal on the issue of service connection for hypertension is dismissed. REMAND The Veteran testified during his June 2013 hearing that ear ringing and hearing loss began in service, and that they have continued since service. Hearing Transcript at 8. Previously, the Veteran denied having or having had hearing loss and ear trouble on service discharge examination in February 1970, and his hearing and neurological examinations were normal at the time. On October 2006 VA audiometric examination, the examiner reported that on history in 2003, the Veteran reported that he had been experiencing difficulty with hearing loss for 2 years. The examiner also indicated that the Veteran had indicated that tinnitus had been present for 10-15 years. The Board has reviewed the claims file and can find no medical record from 2003 or otherwise, reporting a 2-year hearing loss history. He presented to the VA clinic in December 2002 complaining of being hard of hearing. An ENT consult was requested. A March 2003 audiological consult notes that a patient history was taken, but it does not appear the report of such was included in the VA treatment records contained in the claims file. Such record should be requested on remand. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). Any additional relevant records should be obtained as well, to fully develop the record. Regarding the claim for service connection for lumbar spine disability, the medical evidence first shows lumbar spine degenerative disc disease on VA X-rays in August 2006. The medical report ordering those X-rays is not of record, nor are any other post-service medical records prior to August 2006 showing lumbar spine trouble. All additional relevant medical records of treatment which the Veteran has received for lumbar spine trouble post-service should be obtained, in order to assist the Veteran under 38 C.F.R. § 3.159. Next, there were 2 attempts to obtain service treatment records, in August 1971 and September 2004. Service treatment records which are currently of record are silent for reference to back trouble, and on service discharge examination in February 1970, the Veteran denied having or having had back trouble of any kind. On examination his spine was normal. The Veteran asserted in September 2006 that he injured his back in a Jeep wreck in service while he was in Saigon, while assigned to 12 QM Co. 6th QM Bn. He reported that he was taken to the service hospital in Saigon for treatment. He reported that his condition was aggravated by his service duties which involved moving drums and crates manually. In June 2007, he indicated that VA did not obtain those treatment records. During his June 2013 hearing, he testified that he had experienced back pain after service from an in-service Jeep accident, and that his 1st post-service back treatment had been at the Houston VA, possibly about 10 years before the hearing. Hearing Transcript at 6-7. Attempts should be made to secure any additional service treatment records to include records regarding treatment which the Veteran allegedly received at the Saigon military hospital for back problems following the claimed Jeep accident in Vietnam. In September 2009, the Veteran claimed that his degenerative disc disease is due to in-service Agent Orange exposure from service in Vietnam. The Veteran's service discharge certificate shows that he served in Vietnam during the Vietnam Era, and so it must be presumed that he was exposed to Agent Orange during such Vietnam service, under 38 C.F.R. § 3.307(a)(6)(iii) (2012). However, there is no competent evidence of record suggesting his back disability is due to Agent Orange exposure, and such disability is not listed under 38 C.F.R. § 3.309(e) as being presumptively related to Agent Orange exposure. Thus, on remand, the Veteran should be advised to submit medical or other evidence indicating that his degenerative disc disease of the lumbar spine is related to Agent Orange exposure. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for his lumbar spine disability, hearing loss disability, and tinnitus. After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file. Also ask the Veteran to provide medical or other evidence that indicates his claimed degenerative disc disease of the lumbar spine is related to Agent Orange exposure. 2. Obtain the report of patient history obtained during the March 17, 2003 VA audiology consult, and any ENT consult conducted during March 2003, from the Houston VA Medical Center or associated clinic. If the records cannot be obtained, the Veteran should be notified of such. Additionally, obtain relevant VA treatment records dating prior to the August 2006, to include from the primary care clinic of the Houston VA Medical Center. Updated relevant VA treatment records dating since May 2012 should also be obtained. If the records cannot be obtained, the Veteran should be notified of such. 3. The RO/AMC should again attempt to obtain additional service treatment records through official channels, to include the records of treatment allegedly received from the military hospital in Saigon following a claimed Jeep accident while he was assigned to 12 QM Co. 6th QM Bn in Vietnam. Any information needed from the Veteran to include completing an NA Form 13055 if necessary, should be obtained prior to making the search. All attempts to obtain such records should be documented in the file. If the records cannot be obtained, the Veteran should be notified of such and a finding that further efforts would be futile should be made. 4. After the above has been completed to the extent possible, the RO/AMC should review the record. If any additional development (to include obtaining medical opinions) is deemed necessary as a result of evidence obtained in response to the above, such should be accomplished. Thereafter, the RO/AMC should re-adjudicate the claims. If the claims remain denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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