Citation Nr: 18161171 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-38 490 DATE: December 28, 2018 ORDER The claims for an effective date prior to July 12, 2012, for service connection for bilateral hearing loss and tinnitus are dismissed. REMANDED 1. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. 2. Entitlement to service connection for a back disability is remanded. FINDING OF FACT On March 8, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran at his Board hearing that a withdrawal of the appeals for earlier effective dates for bilateral hearing loss and tinnitus is requested. CONCLUSION OF LAW The criteria for withdrawal of the appeals for earlier effective dates for bilateral hearing loss and 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 had active service from December 1973 to December 1975. He also served with the Army National Guard from January 1976 to July 1992. These matters come before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Veterans’ Law Judge in March 2018. A transcript of the hearing is associated with the claims file. Withdrawal of Claims The RO granted service connection for bilateral hearing loss and tinnitus in February 2014 and assigned an effective date of July 12, 2012. The Veteran appealed the effective date of service connection; however, during his hearing before the Board, the Veteran testified that he wished to withdraw his claims on appeal. A transcript of the hearing has been associated with he claims file. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeals for earlier effective dates for bilateral hearing loss and tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. REASONS FOR REMAND 1. Bilateral Hearing Loss The Veteran seeks an initial compensable rating for his bilateral hearing loss. During his hearing before the Board, the Veteran indicated that his hearing had worsened since his October 2013 VA examination; however, he also indicated that it had not changed since the examination. He testified that his hearing was worse than rated and that he should have been assigned a compensable rating. In addition, private treatment records show that he was hospitalized in April 2014 for mastoiditis presenting as left ear pain. Given the indication that the Veteran’s hearing may have worsened since October 2013, a remand is required to schedule a VA examination to determine the current severity of his hearing loss. 2. Back Disability The Veteran seeks service connection for a back disability. He asserts that his current back symptoms started in February 1990 while he was lifting metal service trays into wooden bins during his service with the National Guard. Records from the Department of Labor confirm that the Veteran sustained a back injury, noted as acute lumbosacral myofascial strain, while at Camp Roberts. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In the context of Reserve or National Guard service, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual was disabled by an injury (but not disease) that was incurred or aggravated in the line of duty. 38 U.S.C. § 101(24). The Board notes that "injury" is defined as harm resulting from some type of external trauma. VAOPGCPREC 4-2002. Based on a review of the records, it is unclear whether the Veteran was injured during a period of ACDUTRA or INACDUTRA. On remand, appropriate steps should be taken to attempt to verify the type of service the Veteran was performing at the time of his injury. The Veteran had a VA examination in February 2014 to determine whether he has a current back disability due to service. However, this examination report is inadequate for rating purposes. First, the examiner stated that no studies had been completed to determine the underlying pathology causing the Veteran’s current pain. Adequate testing must be completed for a full assessment of the Veteran’s disability. Second, in the opinion, the examiner indicated that service treatment records only identified muscle spasms; however, the emergency room records from February 1990 show tenderness of the lumbosacral paraspinal area without spasms. The diagnosis was acute lumbosacral myofascial strain. The examiner did not indicate whether this injury caused the current complaints of pain. Finally, treatment records show a history of recurrent back pain prior to the February 1990 injury; however, the examiner did not indicate whether the February 1990 injury aggravated a pre-existing back disability. See April 1989 periodic examination and report of medical history, which show report and notation of recurrent back pain. Consequently, a remand is required to schedule a VA examination and obtain an opinion. The matter is REMANDED for the following actions: 1. Associate with the claims file updated VA treatment records, if any. 2. Attempt to verify all ACDUTRA and INACDUTRA dates for alleged service in the California Army National Guard from January 1976 to July 1992, and specifically for February 22, 1990. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA audiology examination to determine the current severity of his bilateral hearing loss. The examiner must be provided access to the electronic claims file and he or she should indicate review of the file in the examination report. All indicated tests and studies should be conducted. The examiner should fully describe the functional effects of the Veteran’s hearing disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his back disability. The examiner must be provided access to the electronic claims file and he or she should indicate review of the file in the examination report. All necessary testing must be completed, to include studies such as x-rays if warranted. Thereafter, the examiner is requested to provide the following: (a) Identify all current back disabilities present since July 2012. (b) Offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current back condition resulted from disease or injury incurred or aggravated (permanently worsened) while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. A rationale for all opinions offered should be provided. In rendering each requested opinion, the examiner must specifically consider and discuss the service treatment records and post-service treatment records, as well as the Veteran’s assertions regarding the onset and nature of his symptoms. 5. Following any additional indicated development, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda G. Alderman