Citation Nr: 1607749	
Decision Date: 02/29/16    Archive Date: 03/04/16

DOCKET NO.  14-21 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to service connection for residuals of a left foot fracture.

2.  Entitlement to service connection for a hiatal hernia.

3.  Entitlement to service connection for left ear hearing loss.

4.  Entitlement to service connection for posterior midline anal fissure.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty for training (ACDUTRA) from January 1998 to June 1998 and from September 2000 to December 2000 and on active duty from November 2001 to June 2011.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Honolulu, Hawaii, Department of Veterans Affairs (VA) Regional Office (RO).  In October 2015, a videoconference hearing was held before the undersigned, and a transcript of the hearing is associated with the record.

The issues of service connection for left ear hearing loss and for an anal fissure are being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if action on his part is required.


FINDING OF FACT

On the record at an October 2015 videoconference hearing before the Board, and prior to the promulgation of a decision on the appeal in the matters, the Veteran expressed his desire to withdraw his appeal seeking service connection for residuals of a left foot fracture and a hiatal hernia.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal are met with respect to the claims of service connection for residuals of a left foot fracture and a hiatal hernia; the Board has no further jurisdiction in these matters.  38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION 

The Board has jurisdiction in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary.  38 U.S.C.A. §  7104.  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(b)(5).  An appeal may be withdrawn as to any or all issues, at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his authorized representative, but must be in writing or on the record at a hearing.  38 C.F.R. §  20.204.

On the record at an October 2015 videoconference hearing before the undersigned, the Veteran expressed his desire to withdraw his appeal seeking service connection for residuals of a left foot fracture and hiatal hernia.  Consequently, there remains no allegation of error in fact or law for the Board to consider regarding those issues.  Accordingly, the Board does not have jurisdiction to consider an appeal in the matters, and the appeal in the matters must be dismissed.


ORDER

The appeal seeking service connection for residuals of a left foot fracture is dismissed.

The appeal seeking service connection for a hiatal hernia is dismissed.


REMAND

The Board has found that further development is needed for VA to fulfill its duties mandated under the Veterans Claims Assistance Act of 2000 (VCAA) with respect to the claims of service connection for left ear hearing loss and for anal fissure.

On August 2012 examination for hearing loss on behalf of VA, audiometry found the Veteran's left ear hearing to be normal.  Puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
25
25
25







Speech recognition ability in the left ear was 96 percent.  The June 2013 rating decision on appeal denied service connection for left ear hearing loss because such disability [as defined in 38 C.F.R. § 3.385] was not shown.  The Veteran has alleged noting a loss of hearing acuity upon return from a second tour of duty in Iraq; exposure to noise trauma is not inconsistent with service in an imminent danger zone, and at the October 2015 hearing the undersigned observed that it may reasonably be conceded that the Veteran was exposed to noise trauma in service.  The Veteran testified at the hearing that he has noticed a decrease in left ear hearing acuity since he was examined by VA to assess his hearing (in August 2012).  Significantly, the puretone thresholds found on that examination were "borderline" and it would not require much of an increase in puretone thresholds to establish that he now has a left ear hearing loss disability; he is competent to observe a progressive loss of his own hearing acuity (albeit not to establish the extent of such loss by his own opinion).  Given the allegation of worsening and the length of the interval since he was last examined, a contemporaneous examination to assess his left ear hearing is necessary.   

Regarding the claim of service connection for anal fissure, service treatment records include a December 2010 letter from a military physician who evaluated the Veteran for complaint of perianal pain.  It was noted that for the past several months the Veteran had had perianal pain that was worse after bowel movements.  He reported occasional rectal bleeding (noted on toilet tissue).  Rectal examination found a posterior midline anal fissure, which appeared to be the cause of the perianal pain, and a treatment regimen was prescribed.  At the hearing the Veteran testified he had perianal pain and rectal bleeding that began in 2004 while he was serving in Iraq but that his initial treatment for such symptoms was in 2010.  Following his separation from service, in June 2011, he had the same symptoms of perianal pain and rectal bleeding, as he had had in 2010, and continued to follow the treatment regimen prescribed in 2010.  He related that the symptoms would come and go, but in 2014 worsened and developed into a mass or a hemorrhoid to the point where he could not sit at work, and was constantly bleeding.  In August 2015 rectal bleeding (BRBPR) was noted.  The Veteran has not been afforded a VA examination in connection with the claim of service connection for anal fissure.  As the record suggests a possible relationship between the current findings and the anal fissure noted in service, the low threshold standard for determining when a VA examination is necessary is met, and a remand for such examination is necessary.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  

The Veteran has stated that he had follow-up treatment with the physicians who treated him in service for anal fissure within 4 to 6 weeks following the initial treatment in December 2010; he stated there were at least 3 follow-up visits.  Records of the follow-up treatment are not found in his record.  As such records would be material evidence in the matter at hand, and are "of record" they must be sought, and secured.  The Veteran has also reported that he saw his VA doctor for rectal complaints.  Records of such treatment are not associated with the record; may contain pertinent information; are constructively of record; and must be secured for the record.  See 38 C.F.R. § 3.159; see Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following:

1.  The AOJ should arrange for an exhaustive search to locate and secure for the record complete clinical records of all follow-up treatment the Veteran received for anal fissure/rectal complaints from Drs. B. Ogen (at McGuire AFB, New Jersey) and C. Hughes from January to June 2011.  If such records cannot be located, they should be certified to be irretrievably lost; the scope of the search should be noted in the record; and the Veteran should be notified.
The AOJ should also secure for the record the complete clinical records of all VA evaluations and treatment the Veteran has received for anal fissures/rectal complaints.

2.  Thereafter, the AOJ should also arrange for an audiological evaluation of the Veteran (with audiometric studies) to determine whether he now has a left ear hearing loss disability, and if so its likely etiology.  His record must be reviewed by the examiner in conjunction with the examination.  Based on a review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

a.  Does the Veteran have a left ear hearing loss disability as defined in 38 C.F.R. § 3.385?

b.  If so, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's military service, to include as due to noise trauma therein?  If not, please identify the etiology considered more likely.

All opinions must include rationale.

3.  The AOJ should also arrange for a proctology examination of the Veteran to ascertain the presence, nature, and etiology of any anal fissure disability.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: 

a.  Does the Veteran have an anal fissure, or residuals of such (if so identify such disability by diagnosis)?  If not, please comment on the significance of the clinical finding of rectal bleeding.

b.  Please identify the likely etiology of any anal fissure (or residual) disability diagnosed.   Specifically, is it at least as likely as not (a 50 % or better probability) that such disability is related to the Veteran's service/anal fissure diagnosed therein?  

The opinions must include rationale.

4.  The AOJ should then review the record and readjudicate the remaining claims.  If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs