Citation Nr: 1338664 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-32 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral hearing loss and tinnitus. In November 2010, the Veteran testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. Subsequent to the July 2010 Statement of the Case (SSOC), the Veteran submitted additional evidence, without a waiver of RO consideration of the same. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The claim of service connection for a bilateral hearing loss disability is REMANDED to the Appeals Management Center (AMC). FINDING OF FACT In November 2010, prior to the promulgation of a decision on the issue of entitlement to service connection for tinnitus, the Veteran withdrew his appeal at his hearing before the undersigned VLJ. CONCLUSION OF LAW The criteria for withdrawal of an appeal as to the issue of entitlement to service connection for tinnitus by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Withdrawal 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. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the Veteran or by his authorized representative, except that a representative may not withdraw a substantive appeal filed by the Veteran personally without the express written consent of the Veteran. 38 C.F.R. § 20.204. At his November 2010 Board hearing, the Veteran withdrew his appeal as to the issue of entitlement to service connection for tinnitus. The Veteran's statement indicating his intention to withdraw the appeal as to these issues, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Also, later in November 2010, the Veteran's representative submitted a statement withdrawing the issue, accompanied by a written statement of the same signed by the Veteran. 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 as to the issue of entitlement to service connection for tinnitus and it is dismissed. ORDER The appeal as to the issue of entitlement to service connection for tinnitus is dismissed. (Continued on the next page) REMAND The Veteran asserts that his current bilateral hearing loss is the result of in-service acoustic trauma. He has described working on the flight line during service, with exposure to aircraft noise during service in the Republic of Vietnam. He reported that he was exposed to aircraft taking off and landing at all times, without hearing protection, during his 12-hour shifts for two weeks during the Tet Offensive. He reported the onset of bilateral hearing loss as upon separation from service, 30-40 years prior. The Veteran's service separation form, his DD-214, indicates that he was an administrative specialist and had foreign service. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of hearing loss. Since November 1, 1967, standards for reporting audiometric results have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) and require conversion. The converted results are represented by the figures in parentheses. Upon entrance into service, in December 1966, objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 5 (20), 0 (10), 5 (15), 10 (15), and for the left ear were 5 (20), 5 (15), -5 (5), 0 (5), both measured at 500, 1000, 2000, and 4000 Hertz, respectively. Upon separation from service, in September 1970, objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 20, 20, 20, 20, 30, 30, and for the left ear were 20, 20, 20, 20, 20, 30, both measured at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. On VA examination in November 2009, the Veteran demonstrated bilateral hearing loss that comports with VA standards to be considered a disability. 38 C.F.R. § 3.385 (2013). He reported the onset of his bilateral hearing loss ten years prior, with subsequent VA treatment in 2005. The examiner noted that the Veteran entered service with pre-existing hearing loss in the left ear as he demonstrated mild hearing loss at 6000 Hertz. The examiner opined that the Veteran's bilateral hearing loss was less likely related to service, as he did not demonstrate continuity of bilateral hearing loss since that time, and that while he demonstrated significant threshold shifts in hearing acuity at the time of his service separation examination, when compared to his service entrance examination, such were consistent with improper headphone placement, patient inattention, or anxiety, and not consistent with noise-induced hearing loss. The examiner also reported that noise-induced hearing loss, based on medical literature, is not progressive with delayed onset. The Board finds it significant that the VA examiner noted that the Veteran entered service with pre-existing hearing loss in the left ear as he demonstrated mild hearing loss at 6000 Hertz. Review of the Veteran's service entrance examination reveals that bilateral hearing acuity was not tested at 6000 Hertz. Also, the examiner appears not to have converted the results of the Veteran's hearing acuity testing recorded at the time of his service entrance examination from to ISO-ANSI standards. Further, it does not appear that the examiner sufficiently considered the Veteran's in-service noise exposure. While the Veteran reported being on guard duty on the flight line, it is unclear if the examiner understood that such exposed him to constant noise from multiple aircrafts taking off and landing, without ear protection. Finally, the VA examiner did not have the opportunity to consider the Veteran's corrected onset of his bilateral hearing loss, 30 to 40 years prior and not 10 years prior. Based on the above, the Board finds that a new VA examination is needed to reconcile the etiology of any current bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA audiological examination with a different examiner than the examiner who conducted the November 2009 examination. In this regard, the Veteran asserted, during his November 2010 Board hearing, that he would be willing to report to a different VA Medical Center (VAMC) in order to be examined by a different examiner. The examiner must opine as to whether it is at least as likely as not that any current bilateral hearing loss is related to service, to include the conceded noise exposure therein. The examiner should consider the Veteran's competent and credible statements regarding his in-service noise exposure and any statements of continuous hearing loss symptoms after service. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 2. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination that may be requested subsequent to this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2013) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs