Citation Nr: 1339433 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-05 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision of the Washington, DC Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of 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 On November 30, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of his appeal as to the issue of service connection for OSA is requested. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the Veteran's representative as to the issue of service connection for OSA have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has withdrawn his appeal as to the issue of service connection for OSA, and, hence, there remain no allegations of errors of fact or law for appellate consideration.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 claim of service connection for OSA is dismissed. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. In November 2011, it was asserted that the Veteran's bilateral hearing loss has worsened. In support of the claim for a higher rating, a private audiological report dated in November 2011 was submitted. This report includes speech discrimination scores and it is unclear whether the Maryland CNC test was used. The evaluation of the Veteran's hearing loss is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. The speech discrimination is derived from a controlled speech discrimination test (Maryland CNC). A review of the private report reflects a speech discrimination score which is significantly different (worse) from the prior VA examination report dated one year prior. However, as noted, there is no indication that Maryland CNC testing was conducted. Therefore, the Veteran should be afforded a current VA audiological examination to include confirming current speech discrimination test via Maryland CNC testing. Additionally, the private examiners should be asked to identify the type of speech discrimination test that was used in the November 2011 report. Accordingly, the case is REMANDED for the following action: 1. Contact the private physicians who prepared the November 16, 2011 report, which includes audiological testing, and request that they indicate whether the speech discrimination tests performed during that November 2011 hearing evaluation were done using the Maryland CNC. Also ask that they provide the pure tone threshold findings in numerical (not just graphical) form to better correlate these results with 38 C.F.R. § 4.85 in terms of the amount of hearing loss (threshold losses) in the specified frequencies of 1,000, 2,000, 3,000, and 4,000 Hz. Document all efforts to obtain all identified records and notify the Veteran of any inability to obtain records as required by 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA audiological examination. The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the record was reviewed. Any indicated tests should be accomplished. The examiner should obtain the Veteran's auditory thresholds at frequencies of 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores based on the Maryland CNC test. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs