Citation Nr: 1330923	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  07-28 182	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

Entitlement to service connection for multiple joints pain due to an undiagnosed illness.

Entitlement to service connection for bilateral hearing loss.

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service from February 1986 to September 1991. 
      
These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for multiple joints pain, bilateral hearing loss, and tinnitus.  The Veteran appealed the denials of service connection in this decision, and the matter is now before the Board.
 
The Veteran testified via video conference from the RO in San Antonio, Texas before the undersigned Veterans Law Judge at a hearing held in May 2013.

A review of the Virtual VA paperless claims processing system reveals that the system includes documents that relate to the immediate appeals.  The documents are considered to be part of the claims file, and as such have been considered as part of the present appeals.

The issues of service connection for bilateral hearing loss and tinnitus 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.



FINDING OF FACT

At a May 28, 2013 hearing before a Veterans Law Judge, prior to the promulgation of a decision in the appeal, the Veteran indicated the he wished to withdraw his appeal on the issue of service connection for multiple joints pain due to an undiagnosed illness; there are no questions of fact or law remaining before the Board in this matter.


CONCLUSION OF LAW

The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for service connection for multiple joints pain due to an undiagnosed illness.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision, and may be withdrawn on the records at a hearing.  38 C.F.R. § 20.204.  At the May 2013 hearing before the undersigned, the Veteran indicated that he was withdrawing the claim of service connection for "arthritis," also characterized in the record as multiple joints pain due to an undiagnosed illness.

As the Veteran has withdrawn the appeal regarding this issue, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the issue of service connection for multiple joints pain, and it is dismissed. 



ORDER

The appeal for service connection for multiple joints pain is dismissed.


REMAND

The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus, which he contends began in service.  The Veteran's service personnel records reflect a military occupational specialties included "vehicle repairer," and the Veteran has testified to exposure to loud noises during service.

On audiological evaluation during his July 1986 enlistment examination, pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
20
10
10
10
5
5
LEFT
15
10
10
0
0
5

On audiological evaluation during the Veteran's separation examination in September 1991, pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
30
15
15
5
10
30
LEFT
25
10
5
10
10
25

Based on the foregoing, the Veteran's hearing acuity reduced during service, however on VA examination in March 2005, the Veteran's hearing was described by the examiner as "normal."  On audiological evaluation pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
20
20
15
15
LEFT
20
15
20
15
15

Based on the audiometric data, the examiner also opined that the "Veteran's normal hearing sensitivity does not support his claim of tinnitus."  The Board notes that the Veteran's March 2005 audiometric thresholds did not meet the level of a hearing loss disability for VA purposes.  Rather, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Since the March 2005 VA examination, the Veteran has submitted a report of private audiometric testing from May 2013.  This audiological evaluation shows pure tone thresholds, in decibels, to be as follows:


HERTZ

500
1000
2000
3000
4000
8000
RIGHT
40
35
25
25
10
40
LEFT
35
30
25
15
5
30

This testing shows that the Veteran's current hearing acuity does reach the level of a compensable hearing loss, and is not "normal," as it was described by the March 2005 VA examiner.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels).  Furthermore, this erodes the factual premises on which the VA examiner based the conclusion regarding tinnitus.

Included in the May 2013 private report of audiologic testing, was a statement that the average pure tone thresholds for each ear were "in poor agreement with [the Veteran's] speech reception thresholds."  The Board finds that the private audiometric findings are thus indicative that the Veteran's level of hearing loss may have changed such that a new VA examination is warranted, however the accuracy of the audiometric results themselves are somewhat questionable - which also necessitates a new VA examination in order to determine the Veteran's current audiometric thresholds.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA audiologic examination to determine the extent etiology of his current bilateral hearing loss and tinnitus.  The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination.

In answering the following questions, the examiner should presume that the Veteran was exposed to noise during service:

a.  Did the Veteran's bilateral hearing loss, at least as likely as not (i.e., to at least a 50 percent degree of probability) have its onset in service, or is it otherwise related to service, to included the claimed noise exposure as a "vehicle repairer" during service?

b.  Did the Veteran's tinnitus, at least as likely as not have its onset in service, or is it otherwise related to service, to included the claimed noise exposure as a "vehicle repairer" during service?
		
Note: The term "at least as likely as not' does not mean merely within the realm of medical possibility, but rather that the weight of evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of causation as it is to find against it. 

2.  After completing all indicated development, readjudicate the claims for service connection for bilateral hearing loss and tinnitus in light of all the evidence of record.  If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the 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. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs