Citation Nr: 1629494	
Decision Date: 07/25/16    Archive Date: 08/04/16

DOCKET NO.  12-24 146A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for cervical degenerative disc disease.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus. 

4. Entitlement to an effective date prior to January 18, 2016 for a grant of entitlement to service connection for right ankle osteoarthritis.

5. Entitlement to a higher initial disability rating for right ankle osteoarthritis.

6. Entitlement to an increased disability rating for a right anterior leg tibialis muscle hernia, currently evaluated as 10 percent disabling. 


REPRESENTATION

Appellant represented by:	Douglas Sullivan, Attorney

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. Parke, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1973 to April 1975 to include combat service in the Republic of Vietnam. 

This appeal is before the Board of Veterans' Appeals (Board) on appeal from April 2011 and May 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Veteran testified in support of these claims during a hearing held at the RO before the undersigned in October 2015.

This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

The issues of entitlement to service connection for bilateral hearing loss and tinnitus, entitlement to an effective date prior to January 18, 2016 for a grant of entitlement to service connection for right ankle osteoarthritis, and entitlement to an increased disability rating for right ankle osteoarthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. During the October 2015 hearing the Veteran, through his attorney, withdrew from appellate consideration the claim of entitlement to service connection for cervical degenerative disc disease.

2. During the October 2015 hearing the Veteran, through his attorney, withdrew from appellate consideration the claim of entitlement to an increased disability rating for a right anterior leg tibialis muscle hernia.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for cervical degenerative disc disease have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.204, 20.1404 (2015).

2. The criteria for withdrawal of the appeal of the claim of entitlement to an increased disability rating for a right anterior leg tibialis muscle hernia have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.204, 20.1404.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Pursuant to 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative.  Id.

During the October 2015 hearing, the Veteran, through his attorney, withdrew the claims of entitlement to service connection for cervical degenerative disc disease and entitlement to an increased disability rating for a right anterior leg tibialis muscle hernia.  The Board finds that his statement qualifies as a valid withdrawal of the claims in accordance with the provisions of 38 C.F.R. § 20.204.

In light of the Veteran's withdrawal of the claims, there remains no allegation of error of fact or law for appellate consideration.  Therefore, the Board does not have jurisdiction to review them. Hence, these claims are dismissed.


ORDER

The claim of entitlement to service connection for cervical degenerative disc disease is dismissed.

The claim of an increased disability rating for a right anterior leg tibialis muscle hernia is dismissed. 


REMAND

The Veteran's hearing was normal at both entrance and separation from active duty when the hearing thresholds are compared with VA's definition of what constitutes a hearing loss and the requirements of 38 C.F.R. § 3.385 (2015).  Still, the Veteran did show higher threshold readings at his April 1975 separation examination.  

The Veteran was provided a VA medical examination in April 2011, where the examiner found that the claimant's hearing was normal upon separation from active military service.  The Veteran contends, however, that this examination was  inadequate.  After reviewing this argument in light of the April 2011 examination report the Veteran will be afforded another VA audiological examination.  

Given the development required for the claim of entitlement to service connection for a hearing loss, adjudication of the claim of entitlement to service connection for tinnitus is deferred.      

The Veteran's claims of entitlement to an earlier effective date and increased disability rating for right ankle osteoarthritis were denied in a May 2016 rating decision, and the Veteran submitted a notice of disagreement in May 2016.  Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA audiology examinations to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus.  The examiner is to be provided access to the claims folder, the VBMS file, the Virtual VA file and a copy of this remand. The examiner must specify in the report that these records have been reviewed.  The examiner should not have previously examined or treated the Veteran.  Following the examination the examiner must opine whether it is at least as likely as not that the Veteran's hearing loss or tinnitus is related to his active military service.  A complete rationale for any opinions expressed must be provided. 

The examiner should note that the Veteran's hearing was somewhat diminished upon entry into military service, showing 5-25 decibels of hearing loss bilaterally. His separation examination shows 20-30 decibels of hearing loss bilaterally.  While not enough to demonstrate hearing loss for VA purposes at separation, the Veteran did experience further diminished hearing in service. 

If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

2. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2015).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable.

3.  Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims.  If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney the requisite period of time to respond.  The case should then be returned to the Board, if in order, for further appellate review.

4.  Issue a statement of the case addressing the May 2016 denial of entitlement to an earlier effective date and increased disability rating for osteoarthritis of the right ankle and follow all appropriate appellate proceedings thereafter.  The Veteran is advised that a timely perfected appeal is required for the Board to address any claim.

The appellant has the right to submit additional evidence and argument, including a private medical opinion linking his hearing loss and tinnitus to service, 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 2014).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs