Citation Nr: 1332618	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  10-40 808	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

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

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel


INTRODUCTION

The Veteran had active service from August 1969 to March 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

The Veteran testified at a September 2011 videoconference hearing.  A transcript of the hearing is associated with the claims file.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.

The issue of entitlement to an initial compensable rating for bilateral 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, DC.


FINDING OF FACT

In September 2011, the Veteran expressed his desire to withdraw the issue of entitlement to an initial rating in excess of 10 percent for tinnitus.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran 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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).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 the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran, at the September 2011 videoconference hearing expressed his desire to withdraw his claim for an increased rating for tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


ORDER

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


REMAND

The Veteran seeks a compensable evaluation for his bilateral hearing loss disability. The last VA audiology examination was performed in March 2011.  At the September 2011 videoconference hearing, the Veteran asserted that his hearing loss has gotten worse since this examination.  Specifically, he reported that he has received ongoing VA treatment for his hearing loss disability and that he was issued hearing aids.  Given this evidence, the Board finds that another VA examination is needed in order to accurately assess the severity of the Veteran's bilateral hearing loss disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.327(a) (2013).

The Veteran has reported receiving ongoing treatment for his bilateral hearing loss disability at the VA Medical Center (VAMC).  A review of the claims folder reveals treatment records from the VAMC in Lexington, Kentucky dating up to March 2011.  On remand, all records from March 2011 to the present from the VAMC in Lexington should be obtained.  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).

As a final matter, the Board notes that the RO last considered this issue on appeal in a September 2010 Statement of the Case.  Since that time, additional evidence pertinent to the appeal has been associated with the record, to include findings from a March 2011 VA audiology examination.  The RO, however, has not considered this pertinent evidence in connection with the Veteran's claim nor has the Veteran been provided with a Supplemental Statement of the Case.  This procedural deficiency must be corrected on remand.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain all records of treatment for hearing loss disability pertaining to the Veteran from the VAMC in Lexington, Kentucky dating from March 2011 to the present.  If any records cannot be obtained the claims file should be annotated and the Veteran notified of such.

2.  Thereafter, the RO/AMC should afford the Veteran a VA audiological examination in order to ascertain the current nature and degree of severity of the service-connected bilateral hearing loss disability. The entire claims folder must be reviewed in conjunction with the examination, and the examination report must reflect that such a review was undertaken.  The examiner must also provide a complete rationale for all opinions provided, taking into consideration all available medical evidence and lay statements of the Veteran.  If the examiner determines that an opinion cannot be provided without resorting to mere speculation, such a conclusion must also be explained in detail.  The examiner must also describe the effects of the Veteran's hearing loss on occupational functioning and daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

3.  The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good, to so report.  See 38 C.F.R. § 3.655 (2013).  A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record.  If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable.

4.  Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim for an initial compensable rating for bilateral hearing loss.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.
 
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).




______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs