Citation Nr: 21075695 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-04 162 DATE: December 21, 2021 ORDER Entitlement to an effective date prior to July 19, 2017 for the grant of service connection for right ear hearing loss has been withdrawn, and the appeal is dismissed. Entitlement to service connection for tinnitus is dismissed. REMANDED Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. At his August 2021 Board hearing, the Veteran requested to withdraw the appeal of entitlement to an effective date prior to July 19, 2017 for the grant of service connection for right ear hearing loss. 2. By a May 2018 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for tinnitus, effective the date of the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an effective date prior to July 19, 2017 for the grant of service connection for right ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1969 to July 1971. This case comes on appeal of November 2017 and March 2018 rating decisions. The Veteran testified at a Board tele-hearing in August 2021. As an initial matter, the Board notes that the Veteran was originally granted entitlement to service connection for bilateral hearing loss in the November 2017 rating decision on appeal. However, in December 2017, the agency of original jurisdiction (AOJ) determined that it had committed clear and unmistakable error (CUE) in granting service connection for hearing loss of the left ear. The AOJ then issued a rating decision proposing to sever service connection for left ear hearing loss and further notified the Veteran in February 2018 with information as to how he could dispute the proposal. In May 2018, the AOJ issued a rating decision formally severing service connection for left ear hearing loss, effective August 1, 2018. The Veteran did not indicate disagreement with either the proposal or the severance of service connection. Therefore, only the Veteran's right ear hearing loss is considered service-connected and only the evaluation of the severity or right ear hearing loss is on appeal. 1. Entitlement to an effective date prior to July 19, 2017 for the grant of service connection for right ear hearing loss 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. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, at his August 2021 hearing, the Veteran orally requested to withdraw the appeal of entitlement to an effective date prior to July 19, 2017 for service connection for right ear hearing loss. The undersigned Veterans Law Judge informed the Veteran that withdrawal of the appeal would remove it from consideration before the Board, and the Veteran acknowledged understanding of this. Thus, the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of the action on the part of the Veteran. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). Hence, there remain no allegations of errors of fact or law for appellate consideration on this matter. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Entitlement to service connection for tinnitus The Veteran first filed a claim of entitlement to service connection for tinnitus on July 19, 2017. The AOJ issued a November 2017 rating decision in which it denied entitlement to service connection for tinnitus and the Veteran filed a timely notice of disagreement. In December 2017, the AOJ issued a statement of the case (SOC) continuing the denial, and the Veteran perfected a timely appeal to the Board. However, in May 2018, the AOJ reviewed the Veteran's tinnitus claim and determined that it had committed CUE in denying entitlement to service connection for tinnitus. Accordingly, the AOJ issued a rating decision granting tinnitus, effective the date of the July 2017 claim. Therefore, although this issue was certified to the Board in February 2018, it has since been granted in full. Since the claim has been granted in full, there remain no allegations of errors of fact or law for appellate consideration on this matter. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for right ear hearing loss is remanded. At the August 2021 Board hearing, the Veteran reported that his right ear hearing loss had worsened since his most recent VA examination in October 2017, to include requiring readjustment of his hearing aids. While new VA examinations are not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). In light of the Veteran's competent testimony suggestive of worsening symptoms, an updated hearing loss examination should be scheduled on remand. 2. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is related to exposure to herbicide agents, namely Agent Orange. Such exposure has been conceded on the basis of the Veteran's service in the Republic of Vietnam. Although VA has not recognized a presumptive relationship between hypertension and Agent Orange, as the Veteran's representative noted in the Veteran's Board hearing, the National Academy of Sciences (NAS) upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. See Veterans and Agent Orange: Update 11 (2018). To date, no VA medical opinion has been obtained addressing whether the Veteran's hypertension may be related to in-service exposure to herbicides. As such, the Board finds that a VA opinion regarding the etiology of the Veteran's hypertension, which considers his conceded exposure to herbicide agents, is necessary before making a decision on the claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his right ear hearing loss disability. 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. All indicated tests should be performed and results should be documented in a printed report. 2. Obtain a medical opinion from a medical professional with appropriate expertise to address whether the Veteran's hypertension is related to his military service, to include his presumed exposure to herbicide agents. The examiner should review the entire claims file, and the examiner's report should include discussion of the Veteran's documented history and assertions. With regard to the Veteran's diagnosed hypertension, the examiner should answer whether it is at least as likely as not (approximately 50 percent probability) that the condition is related to his conceded exposure to herbicide agents as a result of military service in the Republic of Vietnam. In providing a response, the examiner is asked to consider and comment upon the most recent November 2018 National Academy of Sciences (NAS) study that moved hypertension from the "limited or suggestive" to "sufficient" category for association with herbicides. Veterans and Agent Orange: Update 11 (2018). A clearly stated rationale must accompany any opinion provided. Adequate rationale must identify both the evidence used in support of the conclusion reached, as well as an explanation as to why such evidence supports the conclusion. 3. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.