Citation Nr: 1808897 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 14-27 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, to include restoration of a 10 percent rating. 2. Entitlement to service connection for a right hip disorder. 3. Propriety of the combined service connected disability rating of 50 percent. (The matters of whether a debt related to the payment of $4,582 in dependency compensation is valid and entitlement to a waiver of recovery of the overpayment of this debt will be addressed in a separate decision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1973 and March 1974 to October 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse action by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C. § 7107(e) (2012). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. The claim for an increased rating for bilateral hearing loss addressed in the REMAND portion of the decision below requires additional development and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the May 2017 hearing before the undersigned, the Veteran withdrew his appeal with respect to the matters of entitlement to service connection for a right hip disorder and the propriety of the combined service connected disability rating of 50 percent. CONCLUSION OF LAW The criteria for withdrawal of the appeal by the Veteran with respect to the matters of entitlement to service connection for a right hip disorder and the propriety of the combined service connected disability rating of 50 percent have been met. 38 U.S.C. § 7105 (b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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.A. § 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. At the May 2017 hearing before the undersigned, the Veteran withdrew his appeal with respect to the matters of entitlement to service connection for a right hip disorder and the propriety of the combined service connected disability rating of 50 percent. Accordingly, the Board does not have jurisdiction to review these aspects of the appeal, and these claims are dismissed. ORDER The appeal with respect to the claim for service connection for a right hip disorder is dismissed. The appeal with respect to the propriety of the combined service connected disability rating of 50 percent is dismissed. REMAND At the May 2017 hearing, the Veteran found fault with the manner in which his September 2016 VA audiometric examination was conducted and described having much more severe hearing loss than was demonstrated by the findings from this examination. More specifically, he asserts that he cannot hear anything in the frequencies above 4,000 Hertz such that he cannot hear fire alarms. The Veteran's representative at the May 2017 hearing requested that the Veteran be provided another VA audiometric examination by a clinician other than the one that conducted the September 2016 VA audiometric examination. Without questioning the methodology of the September 2016 VA audiometric examination, given the testimony of the Veteran as to much more severe hearing loss than was demonstrated at this examination and the request for another VA audiometric examination by the Veteran's representative, the undersigned finds that in order to ensure full compliance with the duty to assist the Veteran and ensure that he is afforded every possible consideration, he should be afforded a VA audiometric examination by a clinician other than the one that conducted the September 2016 VA audiometric examination. See 38 U.S.C. § 5103A (d) (2012)); 38 C.F.R. § 3.326 (2017); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Given the fact that a rating reduction is potentially at issue in this case, the clinician who conducts the VA examination requested below will be directed to, as appropriate given the findings from this examination, stated whether improvement in the Veteran's hearing under the ordinary conditions of life has been demonstrated so as to support a rating reduction. 38 C.F.R. § 3.343(a) (2017). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination-by a different clinician than the one that conducted the September 2016 VA audiometric examination-to determine the current severity of his bilateral hearing loss. The electronic claims files must be made available for review of the Veteran's pertinent medical history. The examiner should conduct audiometric testing and report the resulting auditory thresholds, in decibels, for the frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to obtain speech recognition scores. The examiner is specifically requested to describe the functional effects caused by the Veteran's bilateral hearing loss and, as appropriate based on the results of the audiometric testing, state whether such results represent hearing improvement under the ordinary conditions of life so as to warrant a rating reduction under 38 C.F.R. § 3.343(a). In addition, as the schedular criteria for rating hearing loss do not contemplate frequencies above 4,000 Hertz, given the testimony from the Veteran as to the inability to hear in these frequencies, the Board requires that the examiner comment on the following: Is the Veteran's hearing loss of such a type that decibel loss and speech discrimination tests may not reflect the severity of communication function this Veteran experiences or that his level and type of hearing loss is otherwise an extreme handicap in the presence of environmental noise, even with the use of hearing aids? Provide the rationale behind any answer provided. 2. Following the completion of the above, and any other development as may be indicated, the claim for an increased rating for bilateral hearing loss should be readjudicated based on the entirety of the evidence. To the extent this does not result in a complete grant of all benefits sought, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded claim 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 (2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs