Citation Nr: 21070646 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-59 083 DATE: November 24, 2021 ORDER The appeal seeking entitlement to service connection for lung damage as a result of asbestos exposure and lead based paint is dismissed. The appeal seeking entitlement to a disability rating in excess of 70 percent for service-connected generalized anxiety disorder with cannabis abuse and alcohol abuse is dismissed. The appeal seeking entitlement to an effective date earlier than April 7, 2016, for the grant of an increased evaluation of 70 percent for service-connected generalized anxiety disorder is dismissed. REMANDED Entitlement to a compensable disability rating for service-connected bilateral hearing loss is remanded. Entitlement to service connection for a vestibular disorder is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right thumb laceration (claimed as nerve damage) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT In a December 2020 correspondence, prior to the promulgation of a decision in the appeal, the Veteran and his representative notified the Board that he wished to withdraw the appeals seeking entitlement to service connection for lung damage as a result of asbestos exposure and lead based paint, entitlement to a disability rating in excess of 70 percent for service-connected generalized anxiety disorder with cannabis abuse and alcohol abuse, and entitlement to an effective date earlier than April 7, 2016, for the grant of an increased evaluation of 70 percent for service-connected generalized anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to service connection for lung damage as a result of asbestos exposure and lead based paint have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal for entitlement to a disability rating in excess of 70 percent for service-connected generalized anxiety disorder with cannabis abuse and alcohol abuse have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 3. The criteria for withdrawal of an appeal for entitlement to an effective date earlier than April 7, 2016, for the grant of an increased evaluation of 70 percent for service-connected generalized anxiety disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1969 to May 1973. A virtual hearing before the undersigned Veterans Law Judge was held in December 2020. A hearing transcript is of record. At the virtual hearing, additional evidence was received by the Veteran's representative and the record was held open for 30 days for the submission of additional evidence. In January 2021, the Veteran representative submitted additional evidence which will be considered by the Board at this time. Additionally, as will be discussed in more detail below, based on the testimony provided by the Veteran at the December 2020 hearing, the Board has expanded his claim for entitlement to a compensable disability rating for service-connected bilateral hearing loss to encompass the issue of entitlement to compensation for a vestibular disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (noting that a claim for service connection may be expanded beyond a veteran's lay description of his disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.") Lastly, the issue of entitlement to a TDIU has been raised by the record in conjunction with the Veteran's increased rating claims and therefore, is presently before the Board for adjudication. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes the Veteran's representative submitted a December 2020 Decision Review Request: Higher-Level Review regarding a motion to revise a February 1977 rating decision due to clear and unmistakable error. See VA Form 20-0996 and See Third Party Correspondence. However, a VA correspondence that same month requested the Veteran be more specific as to what contentions he wished to appeal. See Correspondence. A subsequent statement in support of the claim was submitted to explain the Veteran's claim. See Statement in Support of the Claim. To date, there does not appear to have been any VA adjudication of this claim. However, because the claim was filed under the Appeals Modernization Act (AMA) and the present claims are being adjudicated under the Legacy System, the pending claim will not be further discussed in this decision. Withdrawn Issues 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. 38 C.F.R. § 20.204. In a December 2020 statement, the Veteran, through his representative, withdrew the appeals seeking entitlement to service connection for lung damage, entitlement to an increased rating for a generalized anxiety disorder, and entitlement to an earlier effective date for the grant of an increased evaluation for the generalized anxiety disorder. See December 2020 Correspondence. Notably, the withdrawal of these issues was confirmed at the December 2020 Board hearing, and hearing testimony was not taken on these issues. In light of the clear evidence of the Veteran's intention to withdraw these three issues, the Board does not have jurisdiction to review the appeals and they are dismissed. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for service-connected bilateral hearing loss and entitlement to compensation for a vestibular disorder is remanded. At the December 2020 Board hearing, the Veteran provided extensive testimony regarding his service-connected bilateral hearing loss. Importantly, the Veteran testified that he believe his hearing loss had worsened since his last VA examination in 2016. Additionally, the Veteran contended at the December 2020 Board hearing that the true manifistations of his service-connected hearing loss disability were headaches and dizziness, which should have been addressed as a vestibular disorder, instead of hearing loss. As explained in the Introduction, the Board has expanded the Veteran's claim for an increased disability rating for service-connected bilateral hearing loss to encompass consideration of whether the claimed symptoms of headaches and dizziness are indicative of a vestibular disorder, and whether they are related to or a manifestation of his service-connected bilateral hearing loss. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of bilateral hearing loss, including symptoms of a vestibular disorder (headaches and dizziness). 2. Entitlement to a disability rating in excess of 10 percent for service-connected right thumb laceration (claimed as nerve damage) is remanded. At the December 2020 Board hearing, the Veteran also provided extensive testimony regarding his service-connected right thumb laceration. Specifically, the Veteran's representative explained that the Veteran experienced a laceration to the bone which was sutured in service. It was noted that the Veteran had had two surgeries on the thumb and a neuroma formed on the base of his thumb which was removed initially, then returned. The Veteran continued to experience paresthesias of the thumb. He described this feeling as tenderness to the touch in his thumb, as well as shooting pain and partial numbness. He denied receiving any current treatment for the thumb. In light of the hearing testimony provided regarding the claimed manifestations of the Veteran's service-connected right thumb laceration, along with the Veteran's testimony that he believes his symptoms have worsened since his last VA examination, the Board finds another VA examination is needed to ascertain both the present nature as well as severity of his disability in order to properly rate his disability under the correct diagnostic code as well as disability level. 3. Entitlement to a TDIU is remanded. At the December 2020 Board hearing, the Veteran also testified that his right hand bothered him and challenged his ability to perform manual labor. He further noted that the hearing and roaring in his ears were also distracting and bothersome while working. Additionally, the Veteran reported that his anxiety interfered with his relationships when talking to people and noted that he had been fired from jobs because of outbursts. Because a decision on the remanded issues involving increased disability ratings previously discussed could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria for hearing loss. The examiner should also address the Veteran's claimed symptoms of headaches and dizziness and clarify whether these symptoms represent a vestibular disorder that is either related to or a manifestation of his service-connected bilateral hearing loss. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right thumb laceration. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.