Citation Nr: 1410151 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-06 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of a right foot injury. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for asthma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1982 and from May 1982 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in November 2012. A transcript of the hearing has been associated with the Veteran's VA claims folder. The June 2010 rating decision also denied the Veteran's claim of service connection for tinnitus. While the Veteran initiated an appeal of this issue, the RO granted service connection for tinnitus in a February 2011 rating decision. To the Board's knowledge, the Veteran has not disagreed with that decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). This issue is therefore not in appellate status and is not before the Board. The issues of entitlement to service connection for bilateral hearing loss and asthma are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT At the November 2012 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for service connection for residuals of a right foot disability. CONCLUSION OF LAW The criteria for withdrawal of the substantive appeal with regard to the issue of service connection for residuals of a right foot injury have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202 (2013). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2013). At the November 2012 hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw the claim for service connection for residuals of a right foot injury from appellate review. As the Veteran has clearly withdrawn this issue, there remains no allegation of error of fact or law for appellate consideration with regard to this matter. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. Accordingly, the appeal to this extent must be dismissed. ORDER The appeal of the claim for service connection for residuals of a right foot injury is dismissed. REMAND The Veteran testified that his hearing had increased in severity since his last VA examination. Since the RO denied his claim based on the lack of a current disability, a new VA examination is required. In addition to the examination reports contained in the claims file, the June 2010 rating decision indicates that the Veteran was afforded a VA audio examination in April 2010. This report must be obtained and associated with the claims file. The Veteran's service treatment records document that he sought treatment following an asthma attack in October 1979. During the hearing, the Veteran testified that he has continued to experience problems breathing if he overexerts himself. Under these circumstances, a VA examination is warranted. Accordingly, the remaining issues are REMANDED for the following action: 1. The AMC should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all VA and non-VA health care providers who have treated him for the issues remaining on appeal. After procuring authorization from the Veteran for release of all identified records, as appropriate, the AMC should obtain copies of all such records. The April 24, 2010 VA audio examination should be obtained and associated with the claims file. In addition, the AMC must gather any outstanding records of VA medical treatment and associate them with the claims file. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the claims folder. 2. Then, the AMC should schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's claimed hearing loss. The Veteran's claims folder must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any diagnosed hearing loss had causal origins in service or is otherwise related to the Veteran's active duty service. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, the AMC should schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed asthma. The Veteran's claims folder must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified asthma had causal origins in service or is otherwise related to the Veteran's active duty service. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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. 2013). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs