Citation Nr: 18103745 Decision Date: 05/21/18 Archive Date: 05/19/18 DOCKET NO. 14-38 794A DATE: May 21, 2018 ORDER Service connection for auditory processing disorder is granted. The appeal is dismissed with respect to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for gastroesophageal reflux disease (GERD). The appeal is dismissed with respect to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a disability manifested by irregular appetite. The appeal is dismissed with respect to the issue of entitlement to a rating in excess of 10 percent for a traumatic brain injury (TBI). The appeal is dismissed with respect to the issue of entitlement to an initial compensable rating for migraine headaches. The appeal is dismissed with respect to the issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s auditory processing disorder is etiologically related to his service-connected TBI. 2. On August 3, 2015, prior to the promulgation of a decision in the appeal, VA received a written request from the Veteran to withdraw this appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for GERD. 3. On August 3, 2015, prior to the promulgation of a decision in the appeal, VA received a written request from the Veteran to withdraw this appeal as to the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a disability manifested by irregular appetite. 4. On August 3, 2015, prior to the promulgation of a decision in the appeal, VA received a written request from the Veteran to withdraw this appeal as to the issue of entitlement to a rating in excess of 10 percent for a TBI. 5. On August 3, 2015, prior to the promulgation of a decision in the appeal, VA received a written request from the Veteran to withdraw this appeal as to the issue of entitlement to an initial compensable rating for migraine headaches. 6. On August 3, 2015, prior to the promulgation of a decision in the appeal, VA received a written request from the Veteran to withdraw this appeal as to the issue of entitlement to a rating in excess of 50 percent for PTSD. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for auditory processing disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for GERD. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a disability manifested by irregular appetite. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a rating in excess of 10 percent for a TBI. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to an initial compensable rating for migraine headaches. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a rating in excess of 50 percent for PTSD. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 2000 to August 2005. This matter is on appeal from January 2010 and December 2013 rating decisions. In an August 2015 letter, the Veteran’s attorney withdrew from representing the Veteran. A representative may withdraw services as representative in an appeal at any time prior to certification of the appeal to the Board. 38 C.F.R. § 20.608(a) (2017). As VA has not received any document indicating that the Veteran wishes anyone else to represent him, the Board will proceed under the assumption that he wishes to represent himself. The December 2013 rating decision characterized the Veteran’s claim of service connection for an audiological disability as a request to reopen a claim of service connection for bilateral hearing loss. In an August 2015 statement, after perfecting an appeal with regard to this issue, the Veteran clarified that his claim was for service connection for auditory processing disorder, to include as secondary to his service-connected TBI. The Board notes that the Veteran’s claim for service connection for a TBI with auditory perception disorder was denied in a January 2010 rating decision, the Veteran submitted a Notice of Disagreement (NOD) with that decision in September 2010 and, although VA granted service connection for a TBI in a January 2011 rating decision, that decision did not mention the Veteran’s claim for auditory perception disorder. Because the Veteran’s appeal of the January 2010 rating decision has remained open with regard to service connection for auditory perception disorder, the Board finds that the January 2010 rating decision is not final with regard to that issue and that new and material evidence is therefore not necessary. The Board has recharacterized the issue on appeal accordingly. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for auditory processing disorder The Veteran has a current diagnosis of auditory processing disorder, which he contends is etiologically related to his service-connected TBI. During an October 2009 VA treatment appointment, the Veteran underwent a diagnostic auditory processing disorder evaluation. The treatment provider found that “[t]esting is consistent with auditory processing disorder (APD) functional deficits in the presence of TBI” and went on to describe four areas in which the Veteran’s auditory processing displayed poor function. The record contains no medical evidence to the contrary. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s auditory processing disorder was caused, at least in part, by his service-connected TBI. Accordingly, the Board finds that granting service connection for auditory processing disorder is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303(a), 3.310. Withdrawal 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. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). 3. GERD, Irregular Appetite, TBI, Migraines, PTSD On August 3, 2015, VA received a statement from the Veteran in which he indicated that he wished to withdraw this appeal for the issues of GERD, irregular appetite, TBI, migraines, and PTSD. This satisfies the requirements for the withdrawal of a substantive appeal. 38 C.F.R. § 20.204(b). The Veteran has clearly expressed unambiguous intent to withdraw the appeal for these issues. The Board therefore finds that the Veteran’s statement meets the criteria for withdrawal of the appeal for these issues.   Because the Veteran has withdrawn this appeal for these issues, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the claims are dismissed. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel