Citation Nr: 18158738 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-34 183 DATE: December 17, 2018 ORDER Entitlement to service connection for a disability manifested by chills is dismissed. Entitlement to service connection for a disability manifested by fevers is dismissed. Entitlement to service connection for a disability manifested by fatigue is dismissed. Entitlement to service connection for a disability manifested by nausea is dismissed. Entitlement to service connection for a disability manifested by vomiting is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, at the December 2018 videoconference hearing, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for a disability manifested by chills. 2. Prior to the promulgation of a decision in the appeal, at the December 2018 videoconference hearing, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for a disability manifested by fevers. 3. Prior to the promulgation of a decision in the appeal, at the December 2018 videoconference hearing, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for a disability manifested by fatigue. 4. Prior to the promulgation of a decision in the appeal, at the December 2018 videoconference hearing, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for a disability manifested by nausea. 5. Prior to the promulgation of a decision in the appeal, at the December 2018 videoconference hearing, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for a disability manifested by vomiting. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a disability manifested by chills have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a disability manifested by fevers have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a disability manifested by fatigue have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a disability manifested by nausea have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a disability manifested by vomiting have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Air Force from July 1966 to July 1970 and in the Army National Guard from November 1990 to June 1991. In addition, the Veteran served 18 years in the Army National Guard of Arizona. In December 2018, the Veteran testified at a videoconference hearing. This case has been processed under the Board’s “One-Touch” program. A transcript of the hearing will be associated with the claims file at a later time. At a pre-hearing conference, it was agreed that the record would be held open for 30 days. This request was withdrawn after the hearing. Withdrawal of Appeal 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. 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 Veteran or by his authorized representative. 38 C.F.R. § 20.204. A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (b)(1). During the December 2018 hearing, the Veteran withdrew his appeal with respect to the issues of entitlement to service connection for disabilities manifested by chills, fevers, fatigue, nausea, and vomiting. Withdrawal of an appeal is only effective where the withdrawal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Board finds that the withdrawal met the aforementioned, where the Veteran confirmed at the hearing that he wished to withdraw the above-mentioned issues and understood the consequence of such withdrawal. Importantly, the withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3). Therefore, the Veteran has withdrawn his appeal with respect to these issues and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with regard to these issues and they are hereby dismissed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss and tinnitus The Board cannot make a fully-informed decision on the issues as the March 2013 VA medical opinion on the etiology of bilateral hearing loss and tinnitus is inadequate. The Veteran contends that he has bilateral hearing loss and tinnitus as a result of his active duty service. Specifically, on his application for compensation received in January 2011, he noted that he was exposed to loud noise while in combat and while working on jet turbo props. On his Notice of Disagreement received in July 2013, he noted that he worked on a flight line repairing jets and helicopters. The Veteran was afforded a VA examination for hearing loss and tinnitus in March 2013. The examiner did not find that the Veteran’s hearing loss was at least as likely as not caused by or a result of an event in military service and noted that the Veteran left service in 1991 and that military audio showed normal bilateral hearing ability in 1991. The VA examiner also opined that the Veteran’s tinnitus was less likely than not related to his military service and stated that on separation, the Veteran showed no evidence of military noise-induced hearing loss which is associated with tinnitus and that tinnitus began about 17 years after leaving service. The Veteran’s personnel records show that he was part of the Vietnam Air Offensive Campaign from March 1967 to March 1968 which demonstrates that he engaged in combat with the enemy. VA regulations provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). As noise exposure during combat is consistent with the circumstances of the Veteran’s combat service in Vietnam, the Board concedes noise exposure in service. The conclusions rendered by the March 2013 VA examiner are essentially based on an absence of hearing loss at service separation. In this case, the examiner failed to consider whether any hearing loss manifested after separation from service was related to his noise trauma during service. As such a new examination and new opinions with respect to the etiology of bilateral hearing loss and tinnitus are required.   2. Entitlement to service connection for PTSD The Veteran contends that he has PTSD related to his combat service in Vietnam from December 1967 to December 1968 during the TET offensive. The Veteran’s stressors have been conceded. The March 2013 VA examiner found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. The examiner provided a diagnosis of dysthymic disorder and noted that symptoms resembling PTSD were related to such disorder but were less likely than not related to the Veteran’s reported stressors. The Board notes that as the Veteran’s claim was first certified for appeal in October 2015, an evaluation under DSM-5 is applicable. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for claims that were initially certified for appeal to the Board, the Court of Appeals for Veterans Claims (CAVC), or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014, DSM-IV will apply. For all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). As such a new examination is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2014 to the present. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) under both DSM-IV and DSM-5 criteria. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the Veteran’s conceded combat stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include conceded combat duty. 3. Schedule the Veteran for an audiological examination to determine the nature and etiology of any current hearing loss and tinnitus. The examiner must opine whether the Veteran’s hearing loss and tinnitus are at least as likely as not related to the Veteran’s conceded in-service noise exposure. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson, Counsel