Citation Nr: 20028443 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 16-49 898A DATE: April 22, 2020 ORDER New and material evidence has been received to reopen the claim for service connection for a back condition; to this extent only, the claim is granted. New and material evidence has been received to reopen the claim for service connection for a neck condition is granted; to this extent only, the claim is granted. Entitlement to service connection posttraumatic stress disorder has been withdrawn. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. In an unappealed October 2015 rating decision, the RO denied the Veteran’s claims for service connection for neck and back conditions. 2. New and material evidence has been received that is sufficient to justify reopening the claim for entitlement to service connection for a back condition. 3. New and material evidence has been received that is sufficient to justify reopening the claim for entitlement to service connection for a neck condition. 4. In a November 2018 statement, the Veteran requested that his appeal for entitlement to service connection post-traumatic stress disorder be withdrawn. CONCLUSIONS OF LAW 1. New and material evidence has been received that is sufficient to justify reopening the claim for entitlement to service connection for a back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received that is sufficient to justify reopening the claim for entitlement to service connection for a neck condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for withdrawal of entitlement to service connection post-traumatic stress disorder by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1992 to March 1994, from September 2004 to December 2004, and from October 2011 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and February 2017 rating decisions of a VA Regional Office (RO). In a July 2015 rating decision, the RO denied the Veteran’s claims for service connection for neck and back conditions. The Veteran did not appeal this decision. In December 2016, the Veteran submitted a new claim that included requests to reopen his claims for neck and back conditions. These claims were denied by the RO in February 2017 for lack of new and material evidence. In April 2020, the Veteran’s representative submitted an Appellate Brief on behalf of the Veteran and new VA treatment records have been received. The Board finds that new and material evidence has been received sufficient to reopen the claims for service connection; to that extent only, the appeals are granted. Additionally, in November 2018, in a signed, written statement, the Veteran requested to withdraw his appeal for service connection for PTSD. 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue of service connection for PTSD, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that he incurred bilateral hearing loss as a result of his active service. The Veteran’s last VA examination for hearing loss was in June 2014. The examiner found that the Veteran’s hearing loss was most likely due to service, however the Veteran’s hearing loss was not severe enough to meet the criteria to be considered a disability for VA purposes under 38 C.F.R. § 3.385. The Board notes that roughly 6 years have passed since the Veteran’s last VA examination for hearing loss. Additionally, in an October 2016 lay statement, the Veteran asserted that he did not provide accurate results during the VA examination because he was considering whether his results would affect his license to fly helicopters. Based on these facts, the Board finds that this claim must be remanded so that the Veteran can be afforded a new VA examination to assess whether his hearing loss now meets the criteria to be considered a disability for VA purposes. 2. and 3. Entitlement to service connection for a back condition and a neck condition are remanded. The Veteran asserts that he suffers from neck and back conditions as a result of his active service. The Veteran is diagnosed with degenerative disc disease (DDD) of the cervical spine. See January 2017 VA examination for shoulder and arm conditions. The Veteran’s service treatment records (STR) reflect complaints of lower back pain in service in April 1995. The most recent medical treatment records were received in January 2017. Additionally, the Veteran has not been afforded a VA examination to address the nature and etiology of these claimed conditions. Accordingly, the Board finds that these claims must be remanded for additional development, including affording the Veteran a VA examination to assess the nature and etiology of the claimed conditions. 4. Entitlement to service connection for migraine headaches is remanded. The Veteran asserts that he suffers from a headache disability as a result of his active service. During the Veteran’s January 2017 VA examination for headache conditions, the VA examiner opined that the Veteran did not have a current diagnosis for migraine headaches; however, his current headache symptoms were consistent with cervicogenic tension headaches due to his cervical spine DDD and recreational activities. As a decision regarding the claims for a neck condition and back condition could affect the disposition of this claim, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, this claim must be remanded as well. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. The Veteran should next be afforded a VA audiological examination, with an examiner who has reviewed the claims file. The examiner must conduct audiological testing to determine whether a hearing loss disability for VA purposes is present. If so, an opinion must be provided as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability is etiologically related to service. All opinions must be supported by a rationale. 3. Schedule the Veteran for a VA spine examination by an appropriate clinician to determine the nature and etiology of any back and neck conditions. The examiner should address the following matters: (a.) Identify all current back and neck conditions or which were current during the period on appeal; (b.) For each diagnosed condition, the examiner must opine whether the condition is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease. The examiner should also opine whether any such conditions at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Finally, for any neck or back conditions found to be at least as likely as not related to service, the examiner should opine whether the Veteran’s headache disability was at least as likely as not (a 50 percent or greater probability) caused or aggravated (worsened beyond its natural progression) by the Veteran’s back or neck condition. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, Associate Counsel 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.