Citation Nr: 1608072 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 13-15 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a foot disability. 3. Entitlement to service connection for pseudofolliculitis barbae (PFB). 4. Entitlement to a rating in excess of 30 percent for right inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1977 to January 1979. The matter of service connection for bilateral hearing loss is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Muskogee, Oklahoma Department of Veteran Affairs (VA) Regional Office (RO). The claims of service connection for a foot disability and PFB, and for an increased rating for right inguinal hernia are on appeal from a November 2012 rating decision. In December 2015, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issues of service connection for a foot disability and PFB, and regarding the rating for right inguinal hernia 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 At the December 2015 hearing, prior to the promulgation of a Board decision in the matter, the Veteran expressed his intent to withdraw his appeal seeking service connection for bilateral hearing loss; there is no allegation of error of fact or law in this matter remaining for the Board to consider. CONCLUSION OF LAW Regarding the claim of service connection for bilateral hearing loss, the criteria for withdrawal of an appeal by the Veteran have been met; the Board has no further jurisdiction in the matter. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits, and applies to the instant claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the Veteran is withdrawing his appeal seeking service connection for bilateral hearing loss, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. The Board has jurisdiction where there is a question of fact or law 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. An appeal may be withdrawn by the appellant or by his authorized representative in writing or on the record at a hearing at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). On the record during a December 2015 videoconference hearing, prior to the promulgation of a Board decision in the matter, the Veteran expressed his intent to withdraw his appeal seeking service connection for bilateral hearing loss. Consequently, there is no remaining allegation of error of fact or law remaining for appellate consideration in this matter. Hence, the Board does not have jurisdiction to further consider an appeal in the matter, and the appeal must be dismissed. ORDER The appeal seeking service connection for bilateral hearing loss is dismissed. REMAND Upon review of the record the Board finds that further development of evidence is necessary for proper adjudication of the matters remaining on appeal. Pertinent treatment records appear to be outstanding. At the December 2015 hearing, the Veteran testified that he had received treatment for foot disability at Irvin Army Hospital; records of such treatment are not in his record. He also testified that following service he began seeking private treatment for his feet and for PFB from a Dr. Goddard at Variety Medical Center around 2002, and a review of the record found that Dr. Goddard also apparently provided the Veteran treatment for right inguinal hernia. While the record correspondence from Dr. Goddard, records of treatment by Dr. Goddard are not in the record. The Veteran also reported he received private treatment from a podiatrist (Dr. Wilson) during the preceding four or five years; the only records from Dr. Wilson in the record are dated in June and July 2012. The Veteran also testified that he was recycled through boot camp due to problems with his feet, and that his service personnel records should reflect that fact. The current record does not include his complete service personnel record. As the cited records may contain pertinent information (and service hospital records and service personnel records are of record), they must be secured. Furthermore, the Veteran has not been afforded a VA examination in conjunction with his claim of service connection for a foot disability. A review of the record found he has had various foot disabilities (including bilateral flatfoot, bilateral toenail fungus, bilateral tailor's bunions, bilateral hallux valgus, bilateral hallux limitis, viral warts, plantar fasciitis, and hammertoes) diagnosed by Dr. Wilson. Dr. Wilson has opined that such disabilities are related to the Veteran's military service. However, the opinion merely restates the Veteran's allegations, and does not appear to be based on consideration of the Veteran's record; it does not acknowledge that pes planus was noted at the Veteran's enlistment (and that the medical question presented is whether such disability was aggravated by service). Hence, it lacks probative value, and an examination to ascertain the nature and likely etiology of the Veteran's foot disabilities is necessary. The Veteran also has not been afforded a VA examination in conjunction with his claim of service connection for PFB. Notably, he has a private diagnosis of PFB, and his STRs reflect that PFB was noted on service enlistment examination, and that in January 1978 he requested a shaving profile. A February 2013 private opinion indicates that PFB was exacerbated during service, but does not include rationale. An examination to secure a medical advisory opinion as to whether the Veteran's PFB was aggravated by his service is necessary. Finally, the most recent VA examination to assess the Veteran's right inguinal hernia was in October 2012. On an earlier examination (in March 2012) the hernia was found to be readily reducible. The October 2012 examination finding that the hernia was not readily reducible, suggesting worsening (as the Veteran has alleged). Considering the more than three year interval since the veteran was last examined, and the allegation of worsening a contemporaneous examination to assess the severity of the inguinal hernia is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for an exhaustive search for records of the treatment the Veteran received for foot complaints at from the Irvin Army Hospital, and secure such records for the record. If the records cannot be located (because they are irretrievably lost, or have been destroyed, it should be so certified for the record, and the Veteran should be notified. The AOJ should also secure for the record the Veteran's complete service personnel records, to specifically include any records pertaining to his being recycled through boot camp. If the records are unavailable, the reason for such unavailability should be noted in the record. And the Veteran should be so notified. The scope of the searches for the records should also be noted in the record (i.e., if they are not located) 2. The AOJ should ask the Veteran to identify all providers of private evaluations and treatment he has received for his foot disability, PFB, and right inguinal hernia (records of which are outstanding), and to submit the authorizations necessary for VA to secure complete records from each provider). The AOJ should secure for the record complete clinical records of the evaluations and treatment from all providers identified, to specifically include complete records from Dr. Wilson (since 2010) and from Dr. Goddard (of Variety Medical Center). If any provider does not respond to a VA request for records (or declines to provide them), the Veteran should be so notified (and advised that ultimately it is his responsibility to ensure that private treatment records are received. 3. Thereafter, the AOJ should arrange for the Veteran to be examined by an orthopedist or podiatrist to ascertain the nature and likely etiology of his foot disability(ies). The entire 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 opinions that respond to the following: a. Please identify (by diagnosis), each foot disability entity found, reconciling the entities found with those noted in the record (to include the diagnoses made by Dr. Wilson). b. Regarding pes planus, please opine (citing to supporting factual data) whether such disability at least as likely as not (a 50 % or better probability) increased in severity during the Veteran's military service. c. Please identify the likely etiology of each foot disability entity other than pes planus 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/any injury sustained therein? The examiner should include rationale with all opinions. The examiner should specifically note (comment on the significance of) the April 1978 STR notation of foot blistering. 4. The AOJ should also arrange for the Veteran to be examined by a dermatologist to assess his PFB. The entire record must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the record, the examiner should offer an opinion as to whether or not the Veteran's PFB increased in severity during his service. The examiner must include rationale with the opinion, specifically acknowledging (commenting on the significance of) the Veteran's lay statements regarding noticing bumps on his face during service and the January 1978 STR noting his request for a shaving profile.. 5. The AOJ should also arrange for the Veteran to be examined by a surgeon to determine the current severity of his right inguinal hernia. The entire record must be reviewed by the examiner in conjunction with the examination,. The examiner should note all pertinent findings in detail, noting whether there is recurrence, whether any recurring hernia is reducible or not, inoperable, and large or small. The examiner must include rationale for all opinions. 6. The AOJ should then review the record and readjudicate the claims. If any 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