Citation Nr: 1807440 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-10 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hepatitis-C. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for a back disability. REPRESENTATION The Veteran is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2011 and January 2015 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The issues of entitlement to service connection for bilateral hearing loss and a back disability will be addressed in the REMAND portion of this decision and are REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. During a September 2017 hearing before the Board, the Veteran requested to withdraw the appeal as to the issue of entitlement to service connection for hypertension. 2. During a September 2017 hearing before the Board, the Veteran requested to withdraw the appeal as to the issue of entitlement to service connection for hepatitis C. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of the appeal with respect to the issue of entitlement to service connection for hepatitis C have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hypertension and Hepatitis C An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by the veteran or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). During the September 2017 Board hearing, the Veteran requested to withdraw the appeal as to the claims of entitlement to service connection for hypertension and hepatitis C. The Board received this request to withdraw prior to the promulgation of a decision. 38 C.F.R. § 20.204(a), (b)(3). Further, the request was submitted during a Board hearing. 38 C.F.R. § 20.204(a). Consequently, there remains no allegation of error of fact or law for appellate consideration with respect to these claims. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the claims of entitlement to service connection for hypertension or hepatitis C and, thus, they are dismissed. ORDER The claim of entitlement to service connection for hypertension is dismissed. The claim of entitlement to service connection for hepatitis C is dismissed. REMAND The Veteran was provided a VA examination regarding his back disability in November 2010, and a separate VA examination regarding his bilateral hearing loss in March 2014. Although the November 2010 VA examiner acknowledges three instances of in-service back treatment (listed as January 1972, August 1972, and March 1973), the examiner did not appear to consider or discuss a June 1972 entry. Significantly, the June 1972 entry indicates that the Veteran endorsed a 2-month history of back pain consequent to an injury involving a "litter carry." While it is quite possible that the examiner mistook the June 1972 entry as January 1972 (seen in the report as "JUN 30 1972," which could have been read as "JAN 30 1972"), the absence of a reference to the prolonged history of back pain is problematic. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). As such, the Board finds that a remand is warranted in order to provide the Veteran another VA examination. The March 2014 VA examiner ultimately rendered a diagnosis of bilateral sensorineural hearing loss and rendered a negative etiological opinion. In support of this opinion, the examiner "presumed" that the Veteran's bilateral hearing loss noted on entry into active duty was conductive in nature, but did not explain the basis of this presumption or the significance of the Veteran's bilateral hearing loss being conductive in nature. As such, the Board finds that a remand is warranted in order to provide the Veteran another VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). Accordingly, the case is remanded for the following action: 1. The AOJ must provide the Veteran with a VA examination or VA examinations regarding his bilateral hearing loss and back disability. The Veteran's electronic claims file must be made available to the examiner(s) and the examiner(s) must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner(s) should then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that either of the Veteran's claimed disabilities was incurred in or due to his active duty. In so doing, the examiner must specifically consider and discuss the Veteran's assertions regarding in-service events. The audiological examiner is also asked to opine as to whether the Veteran's bilateral hearing loss clearly and unmistakably pre-existed his active duty, as demonstrated by the puretone thresholds obtained during his entrance examination. If so, the examiner is asked to opine as to whether the Veteran's pre-existing bilateral hearing was clearly and unmistakably not aggravated beyond its natural course. In so doing, the examiner must consider and discuss the March 2014 VA examiner's opinion, specifically in regard to the presumption that the Veteran's bilateral hearing loss during the entrance examination was "conductive" in nature and the significance of that hearing loss being conductive in nature. With respect to the Veteran's back, the examiner must specifically consider and discuss each of the three instances of in-service treatment, noting that the June 1972 entry includes a 2-month history of back pain. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot provide an opinion without resort to speculation, it is essential that the examiner explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.). 2. The AOJ must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the associated claim(s). 38 C.F.R. §§ 3.158, 3.655 (2017). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination(s) must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be re-adjudicated. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (West 2014). ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Department of Veterans Affairs