Citation Nr: 20003198 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-54 376 DATE: January 14, 2020 ORDER The appeal for entitlement to a compensable evaluation for erectile dysfunction is dismissed. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. FINDING OF FACT In November 2019, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal as to the issue of entitlement to a compensable evaluation for erectile dysfunction. CONCLUSION OF LAW The criteria for withdrawal of the Veteran’s appeal as to the issue of entitlement to a compensable evaluation for erectile dysfunction have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction of the claims file was subsequently transferred to the RO in Baltimore, Maryland. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of that hearing has been associated with the claims file. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the Veteran has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review his appeal under the existing Legacy Appeals System. 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 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. They must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 20.204(b)(1). A June 4, 2018 decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit), addressing the standard to withdraw an issue on appeal on the record during a Board hearing, held that the withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant, and the subsequent Board dismissal decision must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). In this case, at the November 2019 Board hearing, the Veteran requested to withdraw the appeal as to the issue of entitlement to a compensable evaluation for erectile dysfunction. Such withdrawal was (1) explicit and (2) unambiguous, as the Veteran specifically expressed agreement with the withdrawal of the issue as individually identified. The withdrawal was also (3) done with a full understanding of the consequence of such action, as such consequence was explained to the Veteran by the Veterans Law Judge at the hearing, and the Veteran explicitly expressed understanding of such consequence. Hence, the Board finds that the appellant has withdrawn the appeal as to the issue of entitlement to a compensable evaluation for erectile dysfunction and that there remain no allegations of errors of fact or law for appellate consideration. 38 C.F.R. § 20.204. Accordingly, the Board does not have jurisdiction to review the appeal as entitlement to a compensable rating for erectile dysfunction, and the appeal is dismissed. REASONS FOR REMAND The Veteran also seeks entitlement to service connection for bilateral hearing loss and tinnitus. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran asserts that he developed bilateral hearing loss and tinnitus as a result of in-service acoustic trauma caused by weapons fire while serving in the Republic of Vietnam. A review of the Veteran’s DD Form 214 confirms that he served as an Armor & Unit Supply Specialist in Vietnam, and that he completed sharpshooter training with a rifle. Accordingly, the Veteran's in-service noise exposure is conceded. The Veteran was last provided with a VA audiological examination in September 2014, approximately six years ago. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. At the time of his September 2014 VA examination, the Veteran did not exhibit impaired hearing severe enough to be considered a disability for VA purposes. However, at his November 2019 Board hearing, the Veteran testified that his hearing loss worsened since the September 2014 VA examination. In light of the Veteran’s assertions, a new VA examination is required so that the current nature, severity, and etiology of the Veteran’s hearing acuity may be determined. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Additionally, the Veteran’s representative argued that the previous September 2014 VA examination was inadequate because the examiner based her negative nexus opinion solely on the assertion that the Veteran's August 1968 audiogram at the time of his separation from service showed hearing within normal limits at all tested frequencies, bilaterally. In response to this rationale, the Veteran’s representative cited studies concluding that specific noise levels that cause noise-induced hearing loss vary with the duration of exposure, type of noise, frequency, content of the noise, as well as the susceptibility of the individuals; and that noise exposure at an early age results in hearing loss that is typically not evident on routine audiologic testing at the time. On Remand, the Board notes that the absence of evidence of hearing loss in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, the September 2014 examiner opined the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. As rationale for the opinion, it was stated that no significant threshold shifts were noted in the service treatment records, and therefore there is no objective evidence of inner ear damage occurring as a result of noise exposure during military service. No explanation was provided as to what constitutes a “significant threshold shift.” On remand, if a VA audiologist again finds that there were no significant auditory threshold shifts throughout the Veteran’s service career, then the audiologist should explain what constitutes a “significant threshold shift.” The matters are REMANDED for the following action: 1. Provide the Veteran with an additional VA audiological examination by a qualified VA clinician to determine the nature and severity of the Veteran’s claimed bilateral hearing loss, and to issue a medical opinion as to the etiology of any hearing loss and tinnitus. The clinician should review the Veteran’s entire claims file and all relevant studies, tests, and evaluations deemed necessary should be performed, to include audiometric testing and speech discrimination testing using the Maryland CNC word list. Following a review of the record and examination of the Veteran, the examiner should opine as to whether any current hearing loss is at least as likely as not (50 percent probability or greater) related to his conceded in-service exposure to noise from weapons fire and resulting acoustic trauma. The examiner is also asked to opine as to whether the Veteran’s tinnitus is at least as likely as not (50 percent probability or greater) related to his conceded in-service exposure to noise from weapons fire and resulting acoustic trauma. Rationale must be provided for the opinions proffered. In providing the requested rationale, the examiner must reconcile his/her opinion with the extent of any auditory threshold changes/shifts demonstrated during the Veteran's active service. If any in-service auditory threshold changes and/or shifts are found to be insignificant, then the examiner is asked to explain the rationale for this conclusion. In offering an opinion, the examiner must acknowledge that the Veteran is competent to report the initial onset of hearing loss and tinnitus as well as any continuity of symptomology since service. The examiner is advised that the absence of evidence of treatment for hearing loss and/or tinnitus in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 2. After completing the above requested actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, then the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.