Citation Nr: 1753343	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-10 598	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to a compensable rating for service-connected left ear hearing loss. 

2.  Entitlement to service connection for a bilateral eye disorder.

3.  Entitlement to service connection for a back disorder. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 



ATTORNEY FOR THE BOARD

K. Forde, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Air Force from November 1963 to November 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted service connection for left ear hearing loss and assigned a noncompensable rating effective November 2, 2009.  In October 2010, within the one-year appeal period, the Veteran filed correspondence requesting an increased rating for left ear hearing loss.  The Board interprets this correspondence as a Notice of Disagreement with the initial rating assigned for the Veteran's service-connected left ear hearing loss.  38 C.F.R. § 20.201 (2017) (defining a Notice of Disagreement as a written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination of an AOJ and a desire to contest the result).  

In April 2017, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO.  A transcript of the hearing is of record. 

The issue of entitlement to a compensable rating for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.






FINDINGS OF FACT

1.  In a May 2017 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal his claim for service connection for a bilateral eye disorder.

2.  In a May 2017 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal his claim for service connection for a back disorder.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of appeal as to the issue of entitlement to service connection for a bilateral eye disorder have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).

2.  The criteria for withdrawal of appeal as to the issue of entitlement to service connection for a back disorder have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In a written statement submitted in May 2017 and in oral testimony provided at the April 2017 Board hearing, the Veteran indicated that he wished to withdraw his appeal of the issues of entitlement to service connection for a bilateral eye and back disorders.  With regard to the issues withdrawn by the Veteran, there remains no allegation of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed.


ORDER

The appeal as to the issue of entitlement to service connection for a bilateral eye disorder is dismissed.

The appeal as to the issue of entitlement to service connection for a back disorder is dismissed.


REMAND

During the April 2017 Board hearing, the Veteran reported that his left ear hearing loss has worsened since his last VA audiological examination in December 2010.  See also July 2011 written statement.  Additionally, it has been nearly seven years since the last VA audiological examination.  Accordingly, the Board finds a new examination is necessary to assess the current nature, extent, and severity of his left ear hearing loss.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (holding that a VA audiologist conducting a VA audiological evaluation must fully describe the functional effects caused by a hearing disability in his or her final report).  Therefore, the Board has no discretion and must remand the claim.

The Veteran further testified that he received recent VA treatment for his hearing loss "about three or four months ago."  See April 2017 Board hearing at 5.  However, a review of the Veteran's record reveals that the most recent VA treatment records are current only as of January 2012.  Thus, on remand, updated VA treatment records should be obtained.  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all outstanding VA treatment records dated since January 2012, to include the December 2016 or January 2017 audiology consultation.  If any of these records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e).

2.  Schedule the Veteran for a VA audiological examination to address the current nature and severity of his left ear hearing loss.  The electronic claims file should be reviewed by the examiner.  The examiner is to conduct all appropriate testing and the results should be reported.  In addition to objective test results, the examiner should fully describe the functional effects caused by the hearing disability in his or her final report, including specifically, the effect of the Veteran's left ear hearing loss on his daily life and employability.  

3.  Then readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.   

The Veteran has the right to submit additional evidence and argument on the matter 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).


______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs