Citation Nr: 1753761 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-01 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial, compensable disability rating for surgical scars, status post kidney surgery. 2. Entitlement to an initial, compensable disability rating for a right knee scar. 3. Entitlement to service connection for residuals, status post right partial Achilles tear. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for residuals of bilateral eye injuries. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Navy from June 1970 to April 1974 and from June 1975 to January 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge sitting in St. Petersburg, Florida. A transcript is of record. The issues of entitlement to an initial, compensable disability rating for surgical scars, status post kidney surgery; entitlement to service connection for a low back disorder; and entitlement to service connection for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At his March 23, 2017 BVA hearing, the Veteran withdrew his claims of entitlement to an initial, compensable disability rating for a right knee scar; entitlement to service connection for residuals, status post right partial Achilles tear; and entitlement to service connection for residuals of bilateral eye injuries. CONCLUSION OF LAW The criteria for withdrawal of the appeals regarding the issues of entitlement to an initial, compensable disability rating for a right knee scar; entitlement to service connection for residuals, status post right partial Achilles tear; and entitlement to service connection for residuals of bilateral eye injuries, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 USCA § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38C F R §20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During his March 2017 Board hearing, the Veteran and his representative withdrew the appeals regarding the issues of entitlement to an initial, compensable disability rating for a right knee scar; entitlement to service connection for residuals, status post right partial Achilles tear; and entitlement to service connection for residuals of bilateral eye injuries. See March 2017 BVA hearing transcript. Hence, with respect to these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed. ORDER The appeal on the issue of entitlement to an initial, compensable disability rating for a right knee scar is dismissed. The appeal on the issue of entitlement to service connection for residuals, status post right partial Achilles tear is dismissed. The appeal on the issue of entitlement to service connection for residuals of bilateral eye injuries is dismissed. REMAND Unfortunately, a remand is required in this case. While the Board sincerely regrets the delay, the Veteran's remaining claims must be remanded for further development in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claims are afforded every consideration. With regards to the issue of entitlement to an evaluation in excess of 0 percent for residual scars status post left pyeloplasty and pyelolithotomy (claimed as kidney surgery), given the Veteran's March 2017 testimony and since the Veteran's most recent VA examination was conducted in January 2011, the Board finds that a remand is necessary in order to provide the Veteran with another VA examination to adequately assess the current severity of the disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). At his hearing, the Veteran reported pain and discomfort associated with his scar in addition to leakage of urine. See March 2017 Board Hearing Testimony. For the claims for service connection for a low back disorder and hearing loss, the Veteran's service treatment records appear to be incomplete. Indeed, the documents that are available in his file do not cover his entire periods of service. Since the January 2011 and January 2012 VA examiners did not have access to the Veteran's complete records, additional medical opinions are required. As the case is being remanded, all relevant ongoing VA medical records should also be requested on remand. VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim. 38 U.S.C.A. § 5103A(c) (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran's complete treatment records from the Naval Hospital in Jacksonville, Florida, must also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's service treatment records, to include all entrance and separation examinations. If these records are not available, a negative reply is required. 2. Make arrangements to obtain a complete copy of the Veteran's service personnel records. If these records are not available, a negative reply is required. 3. Make arrangements to obtain a complete copy of the Veteran's treatment records from the Naval Hospital in Jacksonville, Florida, dated from January 1992 forward. 4. Make arrangements to obtain a complete copy of the Veteran's VA treatment records, dated from December 2013 forward. 5. After the above has been completed, schedule the Veteran for appropriate VA examination(s) to assess the current level of severity of his service-connected residuals of kidney surgery, to include any and all genitourinary and scar manifestations. The appropriate Disability Benefits Questionnaire(s) (DBQs) should be completed. The claims folder and this remand must be made available to the examiner(s) for review, and the examination report(s) must reflect that such a review was undertaken. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report(s). 6. Schedule the Veteran for a VA audiology examination. The examiner must review the Veteran's claims folder/electronic file, including this Remand. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current hearing loss disability had its clinical onset during active service or is related to any incident of service, to include noise exposure. In providing this opinion, the examiner should acknowledge the in-service audiograms and comment on the shift in puretone thresholds that occurred during service, i.e., to include when comparing the January 1970 and April 1974 audiograms. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 7. Schedule the Veteran for a VA spine exam. The examiner must review the Veteran's claims folder/electronic file, including this Remand. The examiner should perform any diagnostic tests deemed necessary and elicit from the Veteran a complete history of his complaints of back pain, including any medical treatment and the injuries he sustained while performing his duties in the military. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should identify all current diagnoses related to the Veteran's low back. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current low back disorder had its clinical onset during service or is related to an incident of service, to include the in-service fall(s) described by the Veteran. See Transcript of Hearing, dated in March 2017, page 6. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 8. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and 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 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs