Citation Nr: 18144337 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-24 286A DATE: October 24, 2018 ORDER Entitlement to an initial evaluation in excess of 10 percent for tinnitus is dismissed. REMANDED Entitlement to an initial compensable evaluation for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to an initial evaluation in excess of 10 percent for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the appeal for the issue of entitlement to an initial evaluation in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to August 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference; a transcript of the hearing is of record. Tinnitus An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In an April 2015 statement, the Veteran requested to withdraw his appeal regarding the issue of entitlement to an increased evaluation for tinnitus. He already has the highest permissible schedular rating for this disease. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this matter. 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. § 7105. As the appeal has been withdrawn, the Board finds that dismissal is appropriate.   REASONS FOR REMAND Right and Left Ear Hearing Loss The Veteran’s last VA compensation examination of his left ear hearing loss was in July 2013. The Veteran has had no subsequent examination to assess the current severity of his left ear hearing loss. While the Board is not required to direct new examinations simply due to the passage of time, new examinations are appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Board sees there is evidence of worsening symptomatology. At the April 2015 hearing, the Veteran testified that he underwent a private audiology examination in June 2014, whereby he was informed that his bilateral (so left and right ear) hearing loss had increased in severity and that he resultantly required hearing aids. Thus, after considering the medical evidence and the Veteran’s assertions that his service-connected left ear hearing loss has worsened by virtue of his increased rating appeal, and in light of the amount of time since the last VA examination and the possible increase in severity, the Board finds a remand is necessary in order to afford him a new examination that adequately addresses the current severity of his left ear hearing loss disability. Further, as a result of the Veteran’s testimony at the April 2015 hearing, the Board also finds that a new examination is needed in order to address the etiology of the Veteran’s additionally-claimed right ear hearing loss disability, as these symptoms (i.e., worsening hearing loss and hearing aid usage) were not addressed during his July 2013 VA examination. Thus, the Board will remand to obtain an updated VA examination for his claimed right ear hearing loss disability as well. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records if relevant to these claims. 2. After receiving all additional treatment records, schedule the Veteran for a VA examination to address his bilateral hearing loss. The examiner is requested to: (a) Reassess the current severity of his left ear hearing loss disability. All pertinent symptoms and findings must be reported in detail. The examiner should indicate all symptomatology associated with the Veteran’s left ear hearing loss. The examiner should also address any functional impairment caused by this disability. (b) Determine whether the Veteran currently suffers from a right ear hearing loss disability – meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385. If so, the examiner is asked to also provide a medical opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s right ear hearing loss, like that affecting his left ear, is related to any disease, injury or event incurred during service. In offering this opinion, the examiner must consider the lay evidence as to the onset and continuity of symptoms as well as the Veteran’s testimony regarding his exposure to noise during service and consequent injury (acoustic trauma). (Continued on the next page) The Veteran’s claim file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel